Aviation. South Africa

Transcription

1 financial institutions energy infrastructure, Mining and commodities Transport technology and innovation Pharmaceuticals and life sciences Aviation South Africa

2 Unrivalled experience is one of the best at the litigation/aircraft recovery and aircraft finance aspects of the business. Legal Pierre Naude (director) has been nominated and appears in Who s Who Legal: Aviation 2011 Heather Wilmot (director) has been nominated and appears in Who s Who Legal: Aviation 2012 We are one of the world s leading transport practices providing an all round service to the aviation industry. We offer our aviation industry clients the benefit of years of in-depth experience, from all sides of major transactions and claims. Our clients include airlines, banks and financiers, lessors, insurers, brokers, governments and regulatory bodies. Local and international clients confer with our aviation team on finance and leasing transactions, sale and purchase of aircraft, registration of mortgages and other forms of security, drafting of aviation-related commercial agreements, handling claims, interpreting and drafting policy wording, assessing liability and risk, and enforcing commercial agreements across the continent and abroad. We offer specialised advice in all aspects of aviation from the acquisition of aircraft (leasing, financing, and sale), the mitigation of risks through security (mortgages, International Interests) and insurance (hull, cargo, all risks, liability, war risks, repossession risk, political risk, hanger keepers, and product liability), drafting of aviation-related commercial agreements (including hangarage agreements, aircraft maintenance agreements, charter agreements, and pilot services agreements), ensuring compliance with the regulatory framework, the handling and resolution of claims, to the enforcement of commercial, financing and leasing agreements across Africa. We work with our clients to develop new products as well as to manage their legal requirements. Our work on the acquisition of aircraft includes advising on finance and operating leases through tax leases, export credit financings, Islamic leases, securitisations and pre-delivery payment financing. We have significant experience in the drafting of aviation-related commercial agreements including hangarage, aircraft maintenance agreements, charter, and pilot services agreements, and are strong in restructuring and insolvencies. In addition, Norton Rose in South Africa has substantial dispute resolution experience in third party and passenger claims, insurance disputes, and the enforcement of agreements, including reposession.

3 Our asset finance, leasing and commercial practice Our speciality asset finance, leasing and commercial products and services include: The development of new acquisition products Advising on finance and operating leases Tax leases Export Credit financing Islamic leases Securitisations, including: Mortgages (Convention on the International Recognition of Rights in Aircraft, 1948 (the Geneva Convention)) Liens and pledges International Interests (Convention on International Interests in Mobile Equipment, and the Protocol thereto, 2001 (the Cape Town Convention)) Pre-payment delivery financing Hangerage agreements Aircraft maintenance agreements Charter agreements Management agreements Pilot and cabin crew service agreements Pilot and cabin crew operator training agreements Advising on customs and excise issues. Our aviation dispute resolution practice Our speciality dispute resolution products and services include: Advising on all aspects of aviation insurance, including coverage, liability, defence and subrogation Handling liability claims (hull, cargo, passengers and third parties) Interpreting and drafting insurance policies Assisting in aviation accident inquiries Advising on risk and liability exposure, and assisting in mitigation Advising on air transportation regulatory aspects, including licensing and permits Repossession and enforcement of a range of aviation related transactions, including finance and lease agreements Analysing, interpreting and enforcing international liability, financial and flying activity conventions including: Convention for the Unification of Certain Rules for International Carriage by Air, 1929 (the Warsaw Convention) The Guadalajara Convention, 1961 Convention for the Unification of Certain Rules for International Carriage by Air, 1999 (the Montreal Convention) Convention on International Civil Aviation, 1944 (the Chicago Convention) International Air Services Transit Agreement, 1944 Convention on the International Recognition of Rights in Aircraft, 1948 (the Geneva Convention) Convention on International Interests in Mobile Equipment, and the Protocol thereto, 2001 (the Cape Town Convention).

4 We offer Close relationships with leading industry stakeholders, including insurance brokers, loss adjusters, insurers, financial institutions, Export Credit Agencies (ECA) and the transport authorities across Africa, South Africa and abroad, assuring thorough, current aviation expertise. Globally, our team of over 100 aviation lawyers gives us the capability to handle large and complex matters for clients. We are ranked among the top legal practices for aviation regulatory work by both Chambers and The Legal 500 directories. Global expertise feeding into our local knowledge, and vice versa, for a comprehensive, niche approach, incorporating claims, liability and enforcing commercial agreements, to your aviation law requirements. Regular general and client-specific workshops which allow for ongoing education and the ideal forum for an exchange of ideas and concepts. Extensive market knowledge and research.

5 Major recent aviation transactions Dispute resolution and insurance Amentum Aircraft Leasing Assisting Amentum, an Irish based aircraft leasing company in enforcing its rights under both a lease agreement and the Cape Town Convention against the lessee operator, based in Nigeria, following a default by the operator. In doing so, we successfully terminated the lease, and repossessed the leased Airbus A330 aircraft at OR Tambo International Airport, Johannesburg. This was the first time a grounding and repossession had been carried out in terms of the Cape Town Convention in South Africa and without a court order, and marks a huge step for financiers, owners and lessors alike in enforcing these far-reaching remedies in South Africa. Regent Insurance Company Limited Representing a South African insurer and an aircraft owner in defending numerous claims made in consequence of the death of 15 passengers on board a Beechcraft 1900 which crashed in the DRC in September Claims in excess of US$45 million have been brought in Florida and Virginia, where issues such as jurisdiction, forum non convenience and choice of law are of importance. In January 2012, the claims brought in Virginia against the owner were successfully dismissed for lack of personal jurisdiction. Arbitration proceedings have been brought in South Africa for a declarator on the extent of coverage afforded by the policy. Furthermore, the operator of the aircraft has brought action in the South Gauteng High Court against its brokers and the owner, who in turn has joined our client and the excess layer insurers to the proceedings. The matter showcases s aviation dispute resolution expertise, involving three actions in court (Virginia, Florida and Johannesburg), an arbitration (in Johannesburg), a mediation and various alternative dispute resolution processes. The legal systems of the DRC, South Africa, Virginia and Florida and the interaction of various primary and excess layer policies all have an impact on the matter. Azriel Aero Aviation Advising an aviation underwriting manager and its insured operator on risk management, in particular the conditions of carriage contained on the tickets, and the policy obligations in this regard. The status of the Warsaw and Montreal Conventions in Kenya, South Sudan, Tanzania and Uganda were considered. Independent Aviation Underwriters (Pty) Ltd Representing a Namibian based operator and its liability insurer in resolving claims by American and French passengers exceeding US$6 million arising from an accident involving a Cessna 210 aircraft in Namibia in May Litigation was brought in Windhoek, California and Paris. The jurisdiction provisions of the Warsaw and Montreal Conventions and the defense of sudden emergency were prevalent aspects in the matter. Chartis Europe Limited Representing the insurers of a Citation V jet in a subrogated action for US$1,4 million against a Oribi Airport (Msunduzi Municipality) for damages arising out of a faulty man-hole cover in the airfield in May Issues considered include the duties owed by an aerodrome operator to users, and the extent to which these duties can be delegated to a third party. Regent Insurance Company Limited and Azriel Aero Aviation Underwriting Managers (SA) (Pty) Limited Advising the insurers of two Albatross aircraft on coverage and legal liability exposure. The aircraft, whilst flying in tandem in bad weather returning from an airshow, crashed into a mountain range in August 2011 killing all on board. Infiniti Aviation Advising brokers on the interpretation of a policy provision, and in particular the benefit due to certain categories of persons. A policy dispute has arisen between the operator and its insurers following a landing accident in the DRC in July 2011 in which the 78 passengers on board the aircraft were killed.

6 Santam Insurance Company Limited Representing an operator and its liability insurer in resolving loss of support claims from the families of passengers who had died in an aircraft accident in Kenya in The conditions of carriage, the provisions of the Warsaw Convention and the policy interpretation were of relevance. Zurich Insurance Company Limited Representing an operator based in Botswana and its liability insurers in defending passenger claims for damages in excess of 1,5 million arising from an accident involving a Cessna aircraft in November Litigation was brought in the High Court of Botswana. The limitation of liability contained in the ticket as a condition of carriage assumed particular relevance. Willis Group Representing South African Airways (Pty) Ltd (SAA) and its UK-based liability insurers in a subrogated claim against the operators of Kimberley Airport. A De Havilland Dash sustained extensive damage when on landing at the airport it struck an aardvark. A claim in excess of R25 million has been made against the operator of the airport. Zurich Insurance Company Limited Representing an aviation insurer in an arbitration wherein claims were made by a South African aircraft owner under the All Risks and War Risks sections of a policy following the breakdown of a commercial relationship with a Chadian based operator. The concepts of accidental loss, malicious act and seizure were considered. Eskom Enterprises SOC Limited Representing a parastatal entity and its pilot in civil and criminal proceedings arising from a helicopter accident with occurred in South Africa in March 2007, in which the driver of a vehicle into which the helicopter crashed was killed. Infiniti Insurance Representing a primary layer insurer in responding to and defending a claim for indemnity by an aircraft owner under the hull section of an all risks policy for US$2,575 million following the retention of a Beechcraft 1900D aircraft by a disgruntled lessee in Guinea. Litigation was brought in South Africa. Leppard and Associates (Pty) Ltd Representing an aviation insurance broker and its professional indemnity insurer in a claim by an aircraft owner. A Boeing aircraft sustained extensive damage in the region of US$1 million when it reversed over an embankment in South Africa in January The owner s claim for indemnity under a policy of insurance placed via the broker was rejected as the loss did not fall within an insured use. The owner brought a claim against the broker based on breach of certain duties. Willis Group Representing South African Airways (Pty) Ltd (SAA) and its liability insurer in defending a claim for damages brought by a passenger who sustained injury whilst boarding the aircraft. The Ground Handling Agreement between the airline and the ground handler is of relevance. Asset finance, leasing and general aviation commercial South African Express Airways SOC Ltd (SAX) Advised SAX in relation to the sale of aircraft and the structuring of operating leases as part of a fleet renewal valued at approximately US$600 million, involving, at this stage, FirstRand Bank Limited (acting through its Rand Merchant Bank division), Flybe Limited, Aircraft Lease Finance Corporation Inc. and Universal Asset Management Inc. As part of this fleet renewal process, we also advised SAX on various Aircraft Maintenance Agreements, Cabin Crew Services Agreements and Cabin Crew Operator Training Agreements.

7 Air Namibia and RMB International Advised RMB International (Dublin) Limited (now FirstRand (Ireland) plc) (as Agent and Security Trustee) as principal counsel in connection with a US$80 million acquisition by BCI Aircraft Leasing Ireland C, Limited of 2 Airbus A aircraft, leased to Air Namibia. The transaction involved 4 jurisdictions (Namibia, USA, UK and Ireland) and key financing documents were under English law. Aircraft mortgages were registered over the aircraft using the International Registry in Ireland under the Cape Town Convention. Investec Bank Limited Advised Investec Bank Limited in relation to three separate transactions involving the acquisition of Hawker Aircraft acquired for the benefit of Nigerian end parties, operated by South African operators and owned by Mauritian entities. Rand Merchant Bank Advising Rand Merchant Bank as Commercial Lender in relation to the acquisition by SAA of 3 Airbus A aircraft using mainly ECA funding. South African Express Airways SOC Ltd Advised SAX in relation to its Africa expansion, including its operations in the Democratic Republic of Congo. This included obtaining advice on the regulatory framework applicable to airline operators, preparing the joint venture agreement, technical assistance agreement and ground handling agreement. Faasa Chile Servicios Aereos Limitada Advised Faasa Chile Servicios Aereos Limitada (a Chilean company) on the sale of 6 Bell helicopters to a FFA Assets (Pty) Ltd (a South African company). The transaction involved the drafting of all the security documents and the registration of international interests on the International Registry of Mobile Assets. Matekane Farming cc Advised on a Cabin Crew Services Agreement in terms of which Matekane Farming cc will supply to Execujet Aviation Proprietary Limited certain pilot and cabin crew services. Anglo Operations Limited Advising an operator on various notices of acknowledgement and agreements to subordinate flowing from the refinancing of an Agusta AB139 helicopter by the owner. Identifying and registering the various international interests created by the transactions with the International Registry. Regulatory Delta Air Lines Inc, Anglo Operations Limited, LAN Airlines, and the SA Red Cross Air Mercy Service Trust Assisting various domestic and international airlines in the collation, lodging and argument of applications for (domestic and international) Air Service Licenses and Foreign Operator s Permits. Netcare 911 (Proprietary) Limited Advised Netcare 911 (Proprietary) Limited (an aeromedical services provider) on an Aircraft Lease Agreement and an Aircraft Operations Services Agreement (as part of the process of increasing its aeromedical capacity), and assisted in the acquisition of a Hawker 800A aircraft.

8 nortonrose.com Contacts If you would like further information please contact: Johannesburg Pierre Naude Director Dispute resolution and insurance Tel +27 (0) Heather Wilmot Director Dispute resolution, insurance and regulatory Tel +27 (0) Stephen Boikanyo Director Banking and finance Tel +27 (0) Fabio Miceli Associate Banking and finance Tel +27 (0) Claudia Eisenberg Associate Dispute resolution and insurance Tel +27 (0) Norton Rose norton rose is a leading international law firm. With more than 2900 lawyers, we offer a full business law service to many of the world s pre-eminent financial institutions and corporations from offices in europe, asia, australia, canada, africa, the Middle east, latin america and central asia. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences. norton rose is the business name for the international law firm that comprises norton rose llp, norton rose australia, norton rose canada llp and norton rose south africa (incorporated as deneys reitz inc) and their respective affiliates ( norton rose entity/entities ). the purpose of this publication is to provide information as to developments in the law. it does not contain a full analysis of the law, nor does it constitute an opinion of norton rose on the points of law discussed. you must take specific legal advice on any particular matter which concerns you. if you require any advice or further information, please speak to your usual contact at norton rose. no individual who is a member, partner, shareholder, director, employee or consultant of, in or to any norton rose entity (whether or not such individual is described as a partner ) accepts or assumes responsibility, or has any liability, to any person in respect of this publication. any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifications of, as the case may be, norton rose llp or norton rose australia or norton rose canada llp or norton rose south africa (incorporated as deneys reitz inc) or of one of their respective affiliates. NR /12 (UK) Extracts may be copied provided their source is acknowledged.