BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

Transcription

1 BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. ) Application of ) ) KENYA AIRWAYS PLC ) ) Docket No. OST for a foreign air carrier permit pursuant to ) 49 U.S.C and for an ) exemption pursuant to 49 U.S.C ) ) APPLICATION OF KENYA AIRWAYS PLC FOR A FOREIGN AIR CARRIER PERMIT AND EXEMPTION Communications with respect to the above should be addressed to: Evelyn D. Sahr Drew M. Derco Reese Davidson Eckert Seamans Cherin & Mellott, LLC 1717 Pennsylvania Ave., N.W. 12 th Floor Washington, D.C Phone: (202) Fax: (202) esahr@eckertseamans.com Counsel to Kenya Airways PLC DATED: April 28, 2017

2 BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. ) Application of ) ) KENYA AIRWAYS PLC ) ) Docket No. OST for a foreign air carrier permit pursuant to ) 49 U.S.C and for an ) exemption pursuant to 49 U.S.C ) ) APPLICATION OF KENYA AIRWAYS PLC FOR A FOREIGN AIR CARRIER PERMIT AND EXEMPTION Kenya Airways PLC (Kenya Airways), a carrier of the Republic of Kenya, hereby applies for a foreign air carrier permit and exemption (the Application) pursuant to 49 U.S.C and 40109, Part 211 of the Department s Economic Regulations (14 C.F.R. Part 211), Subparts B and C of the Department s Rules of Practice in Proceedings (14 C.F.R and , et seq.), and the Department s Streamlined Licensing Procedures (see notice dated August 23, 2005, Docket OST ). Kenya Airways requests a foreign air carrier permit and exemption authorizing it to provide scheduled and charter foreign air transportation of persons, property and mail from any point or points behind Kenya, via any point or points in Kenya and any intermediate points, to any point or points in the United States and beyond. Kenya Airways respectfully requests that DOT act promptly on this application. Accordingly, Kenya Airways requests that the Department process this application pursuant to its Streamlined Licensing Procedures Notice and issue a single order: (1) granting the exemption authority sought herein for a period of two years, or until the Kenya Airways requested foreign air carrier permit becomes effective; and (2) tentatively awarding Kenya Airways a foreign air 2

3 carrier permit under the show cause procedures described in the Streamlined Licensing Procedures Notice. 1. State the Name and address of the applicant, the nature of its organization and, if applicable, the name of the country under the laws of which it is organized. The complete name and address of Kenya Airways is as follows: Kenya Airways PLC Airport North Road, Embakasi P.O. Box Nairobi, Kenya Kenya Airways is organized under the laws of the Republic of Kenya. 2. Name and official address of the government air transport authority having regulatory jurisdiction over applicant. Kenya Airways is subject to the regulatory jurisdiction of the Kenya Civil Aviation Authority, located at: Aviation House, Jomo Kenyatta International Airport P.O. Box Nairobi, Kenya 3. Statement of the authority requested and a description of the services proposed. Kenya Airways requests that DOT issue it a foreign air carrier permit and an exemption authorizing it to engage in scheduled and charter foreign air transportation of persons, property, and mail from any point or points behind Kenya, via any point or points in Kenya and any intermediate points, to any point or points in the United States and beyond to the full extent permitted by U.S.-Kenya Air Transport Agreement. Kenya Airways initially plans to serve the United States via a codeshare agreement with a duly authorized and properly supervised U.S. or foreign air carrier. Kenya Airways anticipates launching non-stop service to the United States in April As such, Kenya Airways requests that DOT issue it a foreign air carrier permit with 3

4 the broad authority described above, all of which is permitted by the U.S.-Kenya Air Transport Agreement. 4. Provide names, addresses, and citizenship of all Directors, Officers, and Key Management Personnel. The names, addresses, and citizenship of all Directors, Officers, and Key Management Personnel is attached as Exhibit 1. None of the persons listed are related by blood or marriage. 5. Provide the names and citizenship of all persons holding five percent or more of the capital stock or capital of the applicant, along with the number and percentage of shares held by each. A summary of Kenya Airways ownership is attached as Exhibit Does the ownership of applicant hold an interest in any other U.S. or foreign carrier, common carrier, or person engaged in the business of aeronautics? As noted in Exhibit 2, Kenya Airways is 26.73% owned by KLM-Koninklijke Luchtvaart Maatschappij (KLM), a Dutch carrier which is engaged in the business of aeronautics. 7. Relationship between the applicant and its homeland government. The government of the Republic of Kenya is a 29.8% owner of Kenya Airways, and its representatives hold two non-executive director seats on the Board of Directors of Kenya Airways. 8. Applicant s insurance coverage meets or exceeds the liability limits of 14 C.F.R. Part 205. Kenya Airways liability insurance exceeds the minimum requirements of 14 C.F.R. Part 205. Kenya Airways has attached as Exhibit 3 a completed certificate of insurance (DOT Form 6411), as required by 14 C.F.R. Part 205, for the Department s review. Kenya Airways will concurrently file the certificate with the FAA. 9. Evidence of the applicant s homeland operating authority. 4

5 Kenya Airways has an Air Operator Certificate and Air Service License issued by the Kenya Civil Aviation Authority, which are attached for the Department s review as Exhibit Summary of applicant s operating history. Kenya Airways was established in 1977 following the dissolution of East African Airways, the flag carrier of three East African states (Kenya, Uganda, and Tanzania) and currently serves markets in more than 35 countries across Europe, the Middle East, the Far East, and Africa with its fleet of 37 aircraft. Kenya Airways does not presently hold economic authority from the Department, although it did previously hold exemption authority and a statement of authorization to display the designator code of Northwest Airlines on flights operated by Kenya Airways between (1) Amsterdam and Nairobi; (2) Nairobi and Mombasa; and (3) Nairobi and Lilongwe List of aircraft owned. A complete list of Kenya Airways aircraft, along with their registration marks, is attached as Exhibit State where and by whom the maintenance of the aircraft is or will be performed. Most major maintenance of Kenya Airways aircraft will be undertaken by the airline at its home base in Kenya. Kenya is a contracting state to the Convention of International Civil Aviation (Chicago Convention) and observes all applicable ICAO standards. The equipment utilized to perform these services will be maintained by Kenya Airways in accordance with all relevant ICAO annexes. Routine line maintenance will be undertaken at the various outstations that Kenya Airways serves. 1 See Notice of Action Taken, DOT-OST /Undocketed (July 6, 1998). 5

6 13. Describe any arrangements or cooperative working arrangements that exist between the applicant and a U.S. or foreign carrier that would affect the proposed services. Kenya Airways is currently involved in cooperative working arrangements (i.e. codeshare or interline agreements) with numerous international carriers, including KLM Royal Dutch Airlines, Air France, City Jet, Aeroflot, Etihad, Jet Airways, China Eastern, China Southern, Korean Air, Garuda Indonesia, Hong Kong Airlines, Vietnam Airlines, Air Mauritius, LAM Mozambique, Royal Air Maroc, Comair Kulula, TAAG Angola, Air Namibia, Air Burkina, Precision Air and Jambojet. None of these arrangements will affect the proposed service. 14. Financial data. Kenya Airways is financially qualified to provide the services at issue here. Details about its finances are being submitted under seal (Exhibit 6) along with a Motion for Confidential Treatment. These materials establish that Kenya Airways meets and exceeds the Department's financial fitness criteria. 15. Amount, type and reason for financial assistance received from the applicant s home country government, if applicable. The Government of Kenya, as a shareholder, provided Kenya Airways a loan of $200 million USD in the past year. It also provided a loan of approximately 4.2 billion Kenya Shillings in Estimate of total traffic and financial results of intended service. Prior to the commencement of operations, it is difficult for Kenya Airways to accurately predict the total number of passengers that will be served. However, Kenya Airways estimates that approximately 60,000 passengers will be transported within the first year of non-stop service. 6

7 17. Justifications for granting proposed air transportation services. The service proposed herein is consistent with the U.S.-Kenya Air Transport Agreement, signed June 18, 2008, which states that carriers of the Republic of Kenya may provide service to the United States with their own aircraft or enter into cooperative agreements such as codeshare agreements and wet lease agreements with other carriers, U.S. carriers, and airlines of third countries Policy of applicant s homeland with respect to U.S. carriers applications for scheduled and charter authority. Opportunities for U.S. carriers to provide scheduled and charter service to Kenya are available pursuant to the U.S.-Kenya Air Transport Agreement, signed June 18, Several U.S. carriers provide service to Kenya via codeshare agreements with other carriers. 19. Has applicant been involved in any safety or tariff violations or fatal accidents in the last five years? Kenya Airways has not been involved in any safety violations or fatal aircraft accidents within the last five years. 20. Submission of OST Form 4523 (Waiver of liability limits under the Warsaw Convention). Kenya Airways submitted an OST Form 4523 to the Department in Docket OST A copy is also attached hereto as Exhibit Attached as Exhibit 8 is a verification statement, signed by Kenya Airways as required by 14 C.F.R Based upon the information provided in this Application, issuance of exemption authority will not constitute a major regulatory action as provided for in the Energy Policy and Conservation Act of 1975 and 14 C.F.R. Part See U.S.-Kenya Air Transport Agreement, Article 8(7). 7

8 WHEREFORE, Kenya Airways respectfully requests that it be granted an exemption and foreign air carrier permit to engage in scheduled and charter foreign air transportation of persons, property and mail as more fully described above. Kenya Airways also requests expedited approval of this application and any further that the Department may deem appropriate. Dated: April 28, 2017 Respectfully submitted,. Evelyn D. Sahr Drew M. Derco Reese Davidson Eckert Seamans Cherin & Mellott, LLC 1717 Pennsylvania Ave., N.W. 12 th Floor Washington, D.C Phone: (202) Fax: (202) Counsel to Kenya Airways PLC 8

9

10 Kenya Airways Limited Table of Exhibits Exhibit Managers and Directors Exhibit 2...Summary of Ownership Exhibit 3....Certificate of Insurance, DOT Form 6411 Exhibit 4....Operating Authority Exhibit 5. List of Aircraft Exhibit 6... Financial Statements Exhibit Warsaw Waiver, OST Form 4523 Exhibit 8....Verification Statement

11 EXHIBIT 1

12 KENYA AIRWAYS PLC BOARD DIRECTORS CONTACT LIST NAME OFFICE/POSITION CONTACT INFORMATION CITIZENSHIP 1. Michael Joseph Chairman Unit 325, Notting Hill Gate, London W11 3JE, UK Tel: Mbuvi Ngunze Director Kenya Airways Base Headquarters Airport North Road, Embakasi P.O. Box , Nairobi Kenya Mbuvi.Ngunze@kenya-airways.com Tel: Jozef Bernardus Veenstra Director Driehuizerkerkweg 30, 1985 EL, Driehuis, The Netherlands Tel: Jos.Veenstra@klm.com 4 Caroline Armstrong Ogwapit Director Mezzanine Floor, Rehani House, Corner of Koinange St. and Kenyatta Avenue P.O. BOX , Nairobi Tel: kaliarmstrong@yahoo.com 5 Dr. Kamau Thugge Director Permanent Secretary, Ministry of Finance, Treasury Building psfinance@treasury.go.ke Dutch

13 KENYA AIRWAYS PLC BOARD DIRECTORS CONTACT LIST NAME OFFICE/POSITION CONTACT INFORMATION CITIZENSHIP 6 Prof. Paul Maringa Mwangi Director Principal Secretary, State Department for Transport, Transcom House, Nairobi, Kenya. Tel: ps@transport.go.ke 7 Ronald Cornelius Adriaan Schipper Director Sri Pangkor, JalanPangkor 10250, Penang, Malaysia Tel: Dutch 8 Jason Kapkirwok Director P.O. Box , Nairobi Kenya 9 Wanjiku Mugane Director Fedha Connect Limited 4th Floor Laiboni Centre Lenana Road NAIROBI Tel: Festus Kingori Alternate Director to Principal Secretary the National Treasury Wanjiku.mugane@gmail.com The National Treasury Treasury Building Harambee Avenue P.O. Box Nairobi, Kenya Festus.kingori@gmail.com Tel:

14 KENYA AIRWAYS PLC BOARD DIRECTORS CONTACT LIST NAME OFFICE/POSITION CONTACT INFORMATION NATIONALITY 11 Nicholas Otieno Enos Bodo Alternate Director to Principal Secretary, State Department of Transport P.O. Box 35, KNH Nairobi, Kenya Tel: nicholasbodojr@yahoo.com 12 Catherine Musakali Company Secretary Dorion Associates Thompson Estate Gate 7, House 2, Off Ole Odume Road, Diani Close P.O. Box NAIROBI info@dorion.co.ke cmusakali@dorion.co.ke

15 NAME OFFICE/POSITION BUSINESS ADDRESSES RESIDENTIAL ADDRESSES CONTACT INFORMATION CITIZENSHIP MANAGEMENT 1. Mbuvi Ngunze Group Managing Director & CEO Kenya Airways Head Office, Airport North Road, Embakasi, Nairobi, Kenya. Plot No.: 5 Tipuana Gardens Street: Kasuku Close, Karen City: Nairobi P.O Box: 19002, Nairobi Mbuvi.Ngunze@kenyaairways.com Dick Murianki Acting Group Finance Director Plot no 20916, Ngong, House No.B5, Balozi Estate Nkoroi Kamura Rd, Balozi Lane, Ongata Rongai, Nairobi-Kenya Dick.Murianki@kenyaairways.com Jan de Vegt Chief Operating Officer Jahwar Villas, Mudodolane Karen, Nairobi /3023 Jan.devegt@kenyaairways.com Martyn Haines Technical Director 4A1 Serene Valley Apts & Spa Kiambere Rd Upper Hil Martyn.haines@kenyaairways.com British

16 Kevin Kinyanjui Information Systems Director House No. 1030, Benin Drive, Runda Estate, Nairobi Thomas Omondi Achola Director - Strategy and Performance Management Phenom Estate, Off Langata Road, House no.57, Nairobi Kenya Thomas.omondi@kenyaairways.com Francis David Musila Ground Services Director No.5 Zahra Villas, Riara Gardens, Kilimani, Nairobi Kenya Francis.musila@kenyaairways.com Capt. Noel Malinda Flight Operations Director House no. 10 Gem Lane Court Kileleshwa 254- Noel.malinda@kenyaairways.com Vincent Coste Commercial Director Quarry lane, House 104 Karen, Kenya Vincent.coste@kenyaairways.com French Lucy Muhiu Acting Group Human Resources Director Plot No:908 Elia Zagoritis Road Runda Estate P.O. Box Village Market Nairobi Lucy.muhiu@kenyaairways.com

17 EXHIBIT 2

18 Kenya Airways Summary of Ownership The following are shareholders who own or control, directly or indirectly, more than 5% of Kenya Airways. Shareholder Percentage Government of the Republic of Kenya 29.8% KLM-Koninklijke Luchtvaart Maatschappij 26.73% World Bank International Finance Corporation 9.56% Privately owned/publicly traded shares (none of 33.91% which own more than 5%) Total 100% KLM-Koninklijke Luchtvaart Maatschappij is owned by: Shareholder Percentage Air France-KLM Group (French) 100% Total 100% World Bank International Finance Corporation is owned by: Shareholder Percentage IFC is owned by 184 member countries (none of 100% which own more than 5%) Total 100%

19 EXHIBIT 3

20

21

22 EXHIBIT 4

23

24

25

26 EXHIBIT 5

27 Kenya Airways PLC Fleet Aircraft Type Registration Country of Registration MSN Boeing B Y-KZA Kenya Boeing B Y-KZB Kenya Boeing B Y-KZC Kenya Boeing B Y-KZD Kenya Boeing B Y-KZE Kenya Boeing B Y-KZF Kenya Boeing B Y-KZG Kenya Boeing B777 5Y-KQU Kenya Boeing B777 5Y-KQT Kenya Boeing B777 5Y-KQS Kenya Boeing B777 5Y-KYZ Kenya Boeing B777 5Y-KZZ Kenya Boeing B777 5Y-KZY Kenya Boeing B777 5Y-KZX Kenya Boeing B737 5Y-KYN Kenya Boeing B737 5Y-KQC Kenya Boeing B737 5Y-KQD Kenya Boeing B737 5Y-KQE Kenya Boeing B737 5Y-KQF Kenya Boeing B737 5Y-KQG Kenya Boeing B737 5Y-KQH Kenya Boeing B737 5Y-KYD Kenya Boeing B737 5Y-KYF Kenya Boeing B737 5Y-CYA Kenya Boeing B737 5Y-CYB Kenya Boeing B737 5Y-CYD Kenya Boeing B737 5Y-CYC Kenya Embraer E190 5Y-KYP Kenya 398 Embraer E190 5Y-KYQ Kenya 440 Embraer E190 5Y-KYR Kenya 468 Embraer E190 5Y-KYS Kenya 478 Embraer E190 5Y-KYT Kenya 544 Embraer E190 5Y-FFA Kenya 562 Embraer E190 5Y-FFB Kenya 572 Embraer E190 5Y-FFC Kenya 577 Embraer E190 5Y-FFD Kenya 579 Embraer E190 5Y-FFE Kenya 586 Embraer E190 5Y-FFF Kenya 594 Embraer E190 5Y-FFG Kenya 599 Embraer E190 5Y-FFH Kenya 619 Embraer E190 5Y-FFJ Kenya 633 Embraer E190 5Y-FFK Kenya 342

28 EXHIBIT 6

29 Financial Data is Being Submitted under seal along with a Motion for Confidential Treatment

30 EXHIBIT 7

31

32 EXHIBIT 8

33