In 1718, the Commonwealth of the Bahamas became a British Crown Colony, and gained its independence in 1973 while remaining a member of the Commonwealth with the British monarch as its head of state.
Civil aviation falls within the scope of the Ministry of Aviation and is governed by the Civil Aviation Act 2016 (the Act) and the Civil Aviation (Safety) (Amendment) Regulations 2016 (the Regulations). It is intended that the new Act and Regulations will create an enhanced and robust civil aviation sector in the Bahamas.
In particular, the Act created for the first time in the Bahamas an independent Civil Aviation Authority (the Authority), which is headed by the Director of Civil Aviation. The Act also created a new Civil Aviation Security with a National Civil Aviation Security Programme, as well an Air Accident Investigation Department to be headed by the Chief Investigator of Air Accidents. The Act also makes provision for the development and enhanced use of the navigable airspace within the Bahamas, with supporting facilities and services.
II LEGAL FRAMEWORK FOR LIABILITY
The key pieces of legislation governing liability in the aviation sector are the Act, the Regulations and the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2017 (the Air Accident Regulations). The Bahamas is a party to the Convention on International Civil Aviation (the Chicago Convention)2 and the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Warsaw Convention)3 as modified by the Montreal Convention in 1999 (the Warsaw Convention with its supplemental amendments had become cumbersome and inconsistent, which was a departure from its original intent).4 Therefore, as a member state, the Bahamas conforms to the standards and recommendations of the International Civil Aviation Organization (ICAO). Although the ICAO is a regulatory agency, it forms a part of the United Nations to establish and maintain consistency between contracting states.
i International carriage
The Bahamas is a party to the following multilateral agreements relating to international carriage, and as such adheres to all recommended standards, procedures and practices adopted by the ICAO under Article 37 of the Convention and contained in the annexes thereto:
- a International Civil Aviation Organization established by Chicago Convention; 7 December 1944 and Amended in 1947, 1954, 1961 and 1968;
- b Protocol on the Authentic Trilingual Text of the Convention on International Civil Aviation; Chicago 1944;
- c Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air; Warsaw 12 October 1949;
- d Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air; Guatemala City, 28 September 1955;
- e Convention, Supplementary to the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air Performed by Persons Other than the Contracting Carrier; Guadalajara, 18 September 1961;
- f Convention on Damage Caused by a Foreign Aircraft to Third Parties on the Surface; Rome 7 October 1952; and
- g International Air Services Transit Agreement; Chicago 7 December 1944.
ii General aviation regulation
The Act and the Regulations govern all aspects of general aviation in the Bahamas. Schedule 28 of the Regulations provide for general aviation, corporate operators, turbojet and large airplanes.5
iii Passenger rights
The Bahamas, as an ICAO member state, observes the provisions of the Warsaw Convention as modified by Montreal regarding liabilities and passenger rights.
III LICENSING OF OPERATIONS
i Licensed activities
All commercial air transport operations (scheduled or non-scheduled) must obtain approval for an Aircraft Operators Certificate (AOC) from the The Authority. Any proposed operator wishing to obtain an AOC must submit an application (1) in the form and manner prescribed by the Authority; and (2) containing any information the Authority requires the applicant to submit.6
Each AOC applicant must submit an application within at least 90 days prior to the date of intended operation. An AOC is usually valid for a period of 12 calendar months.
The renewal for an AOC should be made within at least 30 days of the expiration of the operator's current AOC. The criteria for renewal is as follows: (1) in the form and manner prescribed by the Authority; and (2) containing any information the Authority requires the applicant to submit.7
Prior to renewal, the Authority shall conduct a risk assessment of the AOC holder's continued compliance with the certification standards for an AOC applicable to the type and complexity of the operations and ensure that there are no outstanding safety concerns at the time of renewal.8
All commercial licensing requirements are set out in Schedule 12 of the Regulations.
The certification process for air taxi operators is the same as that for all other AOC applicants.
ii Ownership rules
The Authority may issue an AOC if after investigation the Authority finds that the applicant:
- a is a citizen of the Bahamas;
- b has its principal place of business and registered office, if any, located in the Bahamas;
- c meets the applicable regulations and standards for the holder of an AOC;
- d is properly and adequately equipped for safe operations in commercial air transport and maintenance of the aircraft;
- e has paid the cost recovery fee required; and
- f holds the economic authority issued by the Bahamas under the Civil Aviation Act.9
In the event the applicant is a body incorporated under the laws of the Bahamas, it must be substantially owned and effectively controlled by nationals of the Bahamas.10
In the Bahamas, the ownership of any business is customarily reserved for Bahamians. However, certain business activities such as aviation may be partially foreign-owned with the prior approval of the National Economic Council (NEC).11 The NEC will carefully consider any such application from the non-Bahamian and may grant approval subject to conditions, for example, the employment of Bahamians, how many aircraft may be operated, or the granting of work permits for any required non-Bahamian personnel.
Each AOC applicant, whether Bahamian or non-Bahamian, who is engaged in commercial air transport in the Bahamas, by law requires economic authority from the Authority. The Air Operator Economic Authorization permits air operators to advertise flight services and conduct business in the Bahamas for the purpose of transporting passengers and property by air, for remuneration, hire or other valuable consideration. During the processing of this application, the Authority will also determine whether the individual or company who makes the application is economically capable of supporting the proposed operations.
iii Foreign carriers
There is no prohibition on foreign carriers operating to and from the Bahamas. The Regulations, however, set out the requirements for the licensing of foreign carriers in the Bahamas, which must conform with ICAO standards.12 These requirements are:
- a a foreign air operator shall not operate in The Bahamas unless it holds operations specifications issued to it by the Authority;
- b where an air operator wishes to apply to operate in the Bahamas it shall make such application to the Authority in the form and manner prescribed by the Authority;
- c an application for operations specifications, shall be accompanied by:
• a copy of a valid AOC and supporting authorisations issued by the state of the operator;
• a copy of any equivalent operations specifications issued by the state of the operator for any demonstrating approvals to be used while conducting operations in the Bahamas;
• a copy of the licence or authorisation granted to the air operator by the state of the operator to conduct commercial air transport to and from the Bahamas;
• a copy of the approval page for a minimum equipment list approved by the state of the operator for each aircraft type intended to be operated in the Bahamas;
• a representative copy of a certificate of registration issued in the state of registry for the aircraft types proposed to be operated in the Bahamas;
• a copy of a document identifying the maintenance that is required to be carried out for aircraft while they are operated in the Bahamas;
• a copy of the maintenance contract between the air operator and the approved maintenance organisation certificate approved by the state of registry to conduct the maintenance while in the Bahamas;
• a copy of any lease agreements, if the aircraft is not owned by foreign air carrier;
• a proposed aircraft operator security programme, for the approval of the Authority; and
• any other document the Authority considers necessary to ensure that the intended operations will be conducted safely; and
- d an applicant under this Schedule shall apply for the initial issue of foreign air operator operations specifications at least 15 days before the date of commencement of intended operation, although it would be more prudent to allow more time for the application process.
Additionally, the Authority will issue operations specifications to a foreign air carrier to conduct commercial air operations in the Bahamas, only if the Authority is satisfied that the air operator:
- a has a valid AOC issued by the state of the operator;
- b has an aircraft operator security programme approved by the state of the operator and the Bahamas for the operations intended;
- c meets the applicable standards and recommended practices for commercial air transport by the ICAO for:
• aeroplanes, Annex 6, Part 1; or
• helicopters, Annex 6, Part 3;
- d meets the standards contained in applicable Annexes to the Chicago Convention for the operation to be conducted; and
- e has sufficient financial resources to conduct safe operations.13
All AOC holders are required to operate within the parameters of the Act and the Regulations, as well as the ICAO-recommended standards and practices, particularly with respect to the following.
i Accident reporting
Schedule 19 of the Regulations makes provision for the reporting of any accident or incident. Operators and individuals (Bahamas-registered or from a contracting state) that are involved in or have knowledge of any accident or serious incident within the Bahamas' airspace, with a Bahamas-registered aircraft, or holding a Bahamas AOC, are obligated to report that accident or incident. All operators shall immediately and expeditiously notify the Authority upon the occurrence of an aircraft accident or any incident as prescribed by the Regulations.14 The content of any notification shall be in the manner prescribed in the Regulations. The Regulations also provide for mandatory and voluntary occurrence reporting, the particulars of which are set out in Schedule 19.15
The Act established an Air Accident Investigation Department (AAID), which is headed by a Chief Investigator of Air Accidents. The AAID shall have the power to investigate or arrange, by contract or otherwise, for the investigation of accidents or serious incidents, occurring in or over the territory of the Bahamas, or outside the territory of any contracting state to civil aircraft registered by the Civil Authority for the purpose of determining the facts, conditions and circumstances relating to each accident or incident and the probable cause thereof.
The investigation of all accidents and incidents are governed by Schedule 19 of the Regulations and the Civil Aviation (Investigation of Air Accidents and Incidents) Regulation 2017.
All AOC holders must have an approved maintenance programme as a part of their operations specifications, which must be approved by the Authority in accordance with the criteria specified in Schedule of the Regulations.16 AOC maintenance requirements include, but are not limited to, the following:
- a maintenance responsibility;
- b approval and acceptance of AOC maintenance systems and programmes;
- c maintenance control manual;
- d mandatory material;
- e maintenance management;
- f maintenance quality assurance programme;
- g aircraft technical log entries; and
- h maintenance records;
No operator will be granted an AOC unless its maintenance is performed by an approved maintenance organisation.17
An application for a Certificate of Airworthiness (COA) may be made to the Authority by any registered owner (or agent of the owner) of a Bahamas-registered aircraft. The application must be in the form and manner as prescribed by the Authority. COAs will be issued for aircraft in a specific category and model designated by the state of design in the type certificate. The Authority may issue special airworthiness certificates in the form of a restricted certificate, experimental certificate or special flight permit. It may also issue an export certificate of airworthiness in cases where a Bahamas-registered aircraft is being exported to the registry of another contracting state.
Aviation insurance is quite complex and it can be extremely tricky to navigate its nuances. Adequate coverage is vital to any air operator and the type and level of coverage is dependent upon the type of operation. Current legislation (the Act, the Regulations and the Insurance Act) does not set out the types and limits of insurance that an air operator must have, although the Authority requires all AOC holders to have aircraft insurance - both liability and hull coverage. The Flight Standards Inspectorate is exploring the possibility of establishing a minimum coverage that all AOC holders are required to have.
However, as a contracting state, Bahamas AOC holders are obligated under the Montreal Convention to maintain adequate insurance covering all liability under the Convention.19
VI WRONGFUL DEATH
The Act does not provide for wrongful death. However, an action can be brought in tort under the Fatal Accidents Act 2001 (the Fatal Accidents Act).
In assessing compensation for wrongful death, under the provisions of the Fatal Accidents Act, the Supreme Court of the Bahamas will award damages as follows:20
- a in proportion to the injury resulting in the death of any person;
- b with the deduction of any costs not recovered from the defendant; and
- c dividing the damages (in such shares as the court orders) among those parties entitled.
Further, the court will not take into account any insurance money, benefit, pension, or gratuity that has already been paid, or that will or may be paid, as a result of the wrongful death.21
The Montreal Convention does provide the claimant with a choice of forum with respect to international carriage.22
VII ESTABLISHING LIABILITY AND SETTLEMENT
An action may be commenced in the Supreme Court of the Bahamas by way of Writ of Summons.
The Court will typically stipulate the award of damages and provide the time in which any such award must be paid. Any order or judgment for the payment of damages may be enforced by the Court23 in the event the party so ordered or adjudged does not pay in the manner so ordered or adjudged.
No action may be brought, under the Fatal Accidents Act, upon the expiration of three years after the date of death or the personal representative's knowledge of the death, whichever is the later.24
Under the Montreal Convention, an action for death or personal injury must be brought within two years of the occurrence of the accident or injury.25 Therefore, a Bahamian citizen injured during an international flight will be subject to the two-year limitation period.
Upon the purchase of a ticket for travel from the airline, a contract is created as between the carrier and the passenger and, therefore, no third parties may be joined in such action; that is, the passenger is not privy to any contract between the carrier and a third party (e.g., pilots, owner or manufacturer of the aircraft).
ii Carriers' liability towards passengers and third parties
A Bahamian operator's liability to passengers is fault-based. The liability is a civil liability. An operator may increase its limits of liability above those provided for in the Montreal Convention or stipulate that there are no limits of liability whatsoever.26
There is no provision under Bahamian law for strict liability in cases of personal injury. The Montreal Convention provides that air carriers are strictly liable for proven damages up to 113,000 special drawing rights (SDR),27 although a carrier shall not be strictly liable for damages exceeding 113,000 SDR if the carrier can prove that (1) the accident that caused the flight injury or death was not owing to its own negligence; or (2) the accident was attributable to the negligence of a third party.28
A carrier cannot seek the ‘third party' defence when the passenger seeks damages of less than 100,000 SDR.
The Contributory Negligence Act 200129 states that Article 21 of the Warsaw Convention contained in the Carriage by Air (Colonies, Protectorates and Trust Territories Order 1953 (which empowers a court to exonerate wholly or partly a carrier who proves that the damage was caused by or contributed to by the negligence of the injured person), shall have effect subject to certain provision of the said Act.30
iii Product liability
Strict product liability is not recognised as a cause of action under Bahamian law; however, product liability claims can be brought under negligence as provided for under the Consumer Protection Act.31
Social security in the Bahamas provides various benefits, including death benefits, and is governed by the National Insurance Act 1972 (NIA).
The court ought not take into account any right to death benefits under the NIA resulting from the death of any person when assessing damages in respect of the death in any action under the Fatal Accidents Act, or the Carriage by Air Act 1961 and the Carriage by Air (Supplementary Provisions) Act 1962 of the United Kingdom as extended to the Bahamas.32
VIII VOLUNTARY REPORTING
There exists in the Bahamas a voluntary reporting system. However, currently there is no provision for voluntary reporting to third-party bodies.
Schedule 19 of the Regulations33 specifically sets out those persons or organisations that are obligated to file a mandatory report with respect to any accident or serious incident. However, the Authority encourages voluntary reporting by any other person or organisation not obligated to report by law.34 The voluntary reporting system is designed to maintain anonymity by the deletion of certain data that would reveal the identity of the person or organisation reporting. Voluntary reports shall remain confidential and be protected by the Authority. Further, the voluntary disclosure of any information, by way of voluntary reporting, shall be inadmissible in any future proceedings relating to the person or organisation reporting.
The Authority also encourages self-disclosure regarding non-compliance with the Regulations, whether or not it is associated with mandatory or voluntary reporting. The Regulations set out certain conditions35 that must be met by the reporter, in order to avoid any legal action with respect to the non-compliance. The Authority shall maintain the confidentiality36 of the reporter and shall not disclose the contents of the report, unless otherwise obligated by law, or with the consent of the reporter. Additionally, The Authority shall not, unless gross negligence is found, bring any legal action against any organisation or person regarding unpremeditated or inadvertent breaches of the law.
IX THE YEAR IN REVIEW
Continued restructuring of the civil aviation sector took place in 2016, with the enactment of the Act and the Regulations, which created a new Civil Aviation Authority, an Accident, and Investigation Department and an Air Navigation Department.
The Act contains a specific provision37 allowing the Minister, at the recommendation of the Authority, to enter into an agreement with a foreign aeronautical authority in accordance with the Article 83 bis agreement under the Chicago Convention.38
The Bahamas also enacted regulations with respect to the use and operation of unmanned aerial vehicles, commonly known as ‘drones', to be operated both commercially and recreationally.
At the 9th International Civil Aviation Organisation Air Services Negotiation Event (ICAN2016) the Bahamas signed six new bilateral agreements with Qatar, Singapore, New Zealand, Curacao, Brazil and Kuwait; and two others separately with Turkey and the United Arab Emirates. These agreements evidence the government's commitment to maintaining and expanding the growth of air traffic services to and from the Bahamas.
On 22 March 2017, the government signed a Declaration of Intent on Flight Information Region with the United States, which included a radar data sharing partnership.39
The Bahamas is optimistic that its Civil Aviation Sector will continue to flourish and look forward to the enhancement of its aircraft registry, ratification of the Cape Town Convention,40 and the modification of its legal and tax regime, with respect to aviation-related transactions.
Improvements to the infrastructure of airports throughout the islands of the Bahamas are expected to continue.
1 Llewellyn V Boyer-Cartwright is a partner at Callenders & Co.
2 7 December 1944.
3 12 October 1929 and became law in 1933.
4 12 October 1929.
5 Schedule 28 of the Regulations.
8 Schedule 12.045 of the Regulations.
9 Schedule 12.025 of the Regulations.
10 Section 64(3)(a) of the Act.
11 Provided at: www.bfsb-bahamas.com/business.php.
12 Schedule 20.165 of the Regulations.
13 Schedule 20.170 of the Regulations.
15 Subpart C; Schedule 19.055-19.100, the Regulations.
16 Ibid., Subpart I.
17 Ibid., Schedule 6.
18 Ibid., Schedule 5.
19 Article 50, Montreal Convention.
20 Section 5, Fatal Accidents Act, 2001.
21 Ibid., 5(3).
22 Article 33 Montreal Convention.
23 Order 45 Rules of the Supreme Court 1978.
24 Section 9, Limitation Act, 1995.
25 Article 35, Montreal Convention.
26 Article 25 Montreal Convention.
27 As at the date of writing one SDR had a value of US$1.38.
28 Article 21 Montreal Convention.
29 Section 5.
30 Section 3 of the Contributory Negligence Act.
31 Section 43.
32 Section 64(3) National Insurance Act.
37 Section 74, the Act.
38 At the time of publication The Bahamas has not yet entered in to any Agreements.
39 Press Release dated 3 March 2017.
40 International Interests in Mobile Equipment (Aviation Protocol, 2001).