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Recent developments and trends
Are there any notable recent developments or trends in the aviation sector in your jurisdiction?
The Bahamian aviation sector is undergoing a significant and necessary transformation following the enactment of the Civil Aviation Act 2016 and a number of amendments to existing regulations in 2016 and 2017. The Civil Aviation Act established the Bahamas Civil Aviation Authority (BCAA), an approved authority under the Approved Authorities Act. Certain powers previously vested in the minister for transport and aviation have been given to the BCAA. Further, developments precipitated by the Civil Aviation Act are designed to achieve an acceptable degree of separation between the Bahamas Air Navigation Services Division (as a provider of services) and the regulator. The functions of the Bahamas Air Navigation Services Division are distinct from the functions of the BCAA as regulator. Both entities are headed by a director and have independent budgets and management structures.
In 2016 the government signed eight bilateral international air service agreements with the following countries:
In March 2017 a radar data sharing agreement was signed with the Federal Aviation Administration (FAA) which provides for the sharing of radar information between the Miami Air Route Traffic Control Centre and Nassau Terminal Radar Approach Control. Further, a declaration of intent on the flight information region was signed between the government and the FAA.
In July 2017 the US Department of Homeland Security implemented enhanced security measures for all commercial flights to the United States beginning on July 18 2017. These measures (seen and unseen) include the enhanced screening of passengers and electronic devices, as well as heightened security standards for aircraft and airports. The Bahamas and 104 other countries were affected by the new security measures.
Regulatory framework
What is the primary domestic legislation governing the aviation industry in your jurisdiction?
The primary legislation governing the aviation industry is the Civil Aviation Act 2016 and the Airport Authority Act.
The Civil Aviation Act established a public authority, the Bahamas Civil Aviation Authority (BCAA), to oversee civil aviation matters. The act sets out provisions which determine the functions of the BCAA, and additional provisions for regulating civil aviation. It also consolidates the law relating to civil aviation safety and security and connected matters.
The Airport Authority Act established the Airport Authority, which is a corporate entity. The act sets out provisions which determine the functions and powers of the Airport Authority, and additional provisions for related matters, primarily concerning the oversight and management of public airports.
What international aviation agreements has your jurisdiction concluded?
In 2016 the government signed eight bilateral international air service agreements with the following countries:
Which government bodies regulate the aviation industry and what is the extent of their powers?
The minister of tourism and aviation is responsible for civil aviation and also interacts with the Airport Authority. The minister has the general duty of organising, carrying out and encouraging measures for:
The minister can establish policies and make regulations as necessary for regulating air navigation and air transport and carrying out and giving effect to the Chicago Convention on International Civil Aviation of December 7 1944. The minister also establishes policies for the Airport Authority. On the authority’s recommendation, the minister may make regulations for the designation, management, control and supervision of airports. Further, the minister is empowered to appoint:
The minister’s powers also extend to approving certain financial aspects of BCAA and Airport Authority operations.
Air carrier operations
What procedural and documentary requirements must air carriers meet in order to operate in your jurisdiction?
The procedural and documentary requirements for air carriers to operate in the Bahamas depend on the nature of the operation requested by the carrier. Types of operation include scheduled journeys and non-scheduled journeys. Licence granting for scheduled journeys – including short-term and provisional licences – and permits for non-scheduled journeys are governed by Part XII of the Civil Aviation Act 2016 and applicable regulations including the Civil Aviation (Licensing of Air Services) Regulations. Foreign air carriers must be registered in a state which has an air services agreement or other special arrangement with the Bahamas in order to be granted a licence to operate in the Bahamas.
Air transport licence applications must be made to the minister of tourism and aviation and are processed by the Department of Air Transport Licensing. Applications are made in writing on prescribed forms and should be accompanied by:
An air operator’s certificate must be issued to the applicant by its home government and (as a general rule) the Bahamas Civil Aviation Authority (BCAA). Having been vetted by an air services licensing officer, applications are considered by the Air Transport Advisory Board, before whom the applicant and its local representative will appear. The board will make a recommendation to the minister of tourism and aviation as regards the application. The minister will then make a final determination on the application.
Ownership and control
Do any nationality or other requirements or restrictions apply to ownership or control of air carriers operating in your jurisdiction?
A Bahamian air operator must provide adequate proof that it is a Bahamian national or body which is incorporated under Bahamas law and owned and effectively controlled by Bahamian nationals. A foreign air carrier must be registered in a state which has an air services agreement or other special arrangement with the Bahamas in order to be granted a licence to operate in the Bahamas. In order for an air carrier to be able to operate in the Bahamas, the minister of tourism and aviation must be satisfied that the applicant is competent and a fit and proper person to operate aircraft for the purposes for which the licence is requested. This is determined by the applicant’s:
What financial thresholds must air carriers meet to obtain operating authorisation?
There are no prescribed financial thresholds which air carriers must meet in order to obtain operation authorisation. However, the minister of tourism and aviation must be satisfied that the operator has sufficient financial resources to operate the relevant aircraft safely.
What is the required level of insurance coverage for air carrier operations?
No prescribed level of insurance coverage exists for air carrier operations.
What safety requirements apply to air carrier operations, including with regard to professional and technical certifications?
Safety requirements are addressed in the Civil Aviation (General) Regulations 2017. These regulations include a series of schedules which prescribe a broad range of safety-related requirements in detail, including, but not limited to:
The schedules provide specific technical safety requirements in support of the Civil Aviation (General) Regulations to ensure that operations in the Bahamas meet the international standards for aviation safety regarding:
Schedule 20 makes specific provisions for safety oversight of foreign operators into the Bahamas.
Section 26 of the Civil Aviation Act provides that every aircraft operator (both domestic and foreign) operating within the Bahamas must establish and maintain an aircraft operator security programme approved in writing by the BCAA, and must not operate without or contrary to an approved aircraft operator security programme. The security programme must provide adequate procedures, training, contingency planning and other measures to protect the security of aircraft, air crews and passengers before and during flight operations. It must also comply with the national civil aviation security training programme and any model aircraft operator security programme provided by the BCAA for adoption and use by aircraft operators.
What environmental obligations apply to air carrier operations?
The functions of the BCAA include overseeing the functioning and development of the air transport and civil aviation industry in an environmentally friendly and competitive manner. Schedule 20(20.070) of the Civil Aviation (General) Regulations provides that no foreign person or entity may operate an aircraft in the Bahamas unless that aircraft is:
Air traffic control
How are air traffic control services regulated in your jurisdiction?
Air traffic control services are regulated under the Civil Aviation Act and the Civil Aviation (General) Regulations. The Civil Aviation Act provides for the establishment of an independent division known as the Bahamas Air Navigation Services Division (BANSD). The division is headed by a director of air navigation services, who reports directly to the BCAA board and operates autonomously from the BCAA’s regulatory oversight divisions. Its sole objective is the provision of air navigation facilities and services. Generally, air traffic services are administered with regard to Annex 11 of the Chicago Convention on International Civil Aviation. As a contracting state of the ICAO, the Bahamas is obligated to follow the requirements of Annex 1 of the Chicago Convention, which deals with personnel licensing. Air traffic controllers must meet certain medical fitness, age, knowledge and experience requirements in order to be granted ratings, which allow them to perform their duties.
Do any licensing requirements apply to specific routes?
Part II of the the Civil Aviation (Licensing of Air Services) Regulations sets out provisions for scheduled journey licences. Schedule 20 of the the Civil Aviation (General) Regulations provides that no foreign person or operator may conduct commercial air transport operations involving cabotage between aerodromes in the Bahamas, and no foreign person or air operator may conduct commercial air transport operations from an aerodrome in a foreign country to and from aerodromes in the Bahamas unless those operations are authorised by the BCAA and accord with the ‘five freedoms’ specified in the International Air Transit Agreement or as provided in applicable bilateral agreements. Further, foreign carriers may land in the Bahamas only at designated ports of entry.
Are any public service obligations in place with respect to remote destinations?
Regulation 8(3)(b) of the Civil Aviation (Licensing of Air Services) Regulations provides that licence holders must perform all reasonable services required either by the postmaster general with regard to the conveyance of mails or any persons who may be in charge thereof, on journeys made under the licence.
Do any special provisions apply to charter services?
Part III of the Civil Aviation (Licensing of Air Services) Regulations sets out provisions for permits for non-scheduled journeys. Generally, cabotage rules apply to operations of licenced foreign carriers in the Bahamas. Further, foreign carriers may land in the Bahamas only at designated ports of entry.
What taxes apply to the provision of air carrier services?
No taxes apply to the provision of air carrier services. Licence and permit fees are provided for under the Civil Aviation (Licensing of Air Services) Regulations.
Consumer protection and liability
Are airfares regulated in your jurisdiction?
Airfares are not regulated in the Bahamas.
What rules and liabilities are air carriers subject to in respect of:
(a) Flight delays and cancellations?
Liability for flight delays for non-international journeys is governed by the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order 1953. Flight delays in respect of international journeys are governed by the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953. For international journeys, certain provisions of the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929 (as annexed to the relevant order) apply. Flight delays and cancellations may also be subject to determination on the basis of contractual arrangements between the airline and the passenger.
(b) Oversold flights?
No special rules govern oversold flights. Passenger rights are determined on the basis of contractual arrangements between the airline and the passenger.
(c) Denied boarding?
No special rules govern incidents of denied boarding. Passenger rights are determined on the basis of contractual arrangements between the airline and the passenger.
(d) Access for disabled passengers?
No special rules govern aircraft access for disabled passengers.
(e) Lost, damaged or destroyed luggage?
Liability for lost damaged or destroyed luggage for non-international journeys is governed by the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order. Liability for lost damaged or destroyed luggage in respect of international journeys is governed by the Carriage by Air (Colonies, Protectorates and Trust Territories) Order. For international journeys, certain provisions of the Warsaw Convention (as annexed to the relevant order) apply. Liability for lost damaged or destroyed luggage may also be subject to determination on the basis of contractual arrangements between the airline and the passenger.
(f) Retention and protection of passenger data?
Retention and protection of passenger data is governed by the Data Protection (Privacy of Personal Information) Act. The act was established to protect the privacy of individuals in relation to personal data and to regulate the collection, processing, keeping, use and disclosure of certain information relating to individuals.
What rules and liabilities apply to the air carriage of cargo?
Rules and liabilities for the air carriage of cargo are governed by the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order in respect of non-international carriage and the Carriage by Air (Colonies, Protectorates and Trust Territories) Order in respect of international carriage.
Marketing and advertising
Do any special rules apply to the marketing and advertising of aviation services?
No special rules apply to the marketing and advertising of aviation services.
Do any special rules apply to consumer complaints handling in the aviation industry?
The provisions of the Carriage by Air (Colonies, Protectorates and Trust Territories) Order for international carriage apply to complaints regarding the delivery of luggage or goods. The applicable rules for non-international journeys are contained in the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order.
Aircraft
What are the requirements for entry in the domestic aircraft register?
An aircraft is eligible for registration on the Bahamas domestic aircraft register if it is:
However, an aircraft will not be registered or continue to be registered in the Bahamas if the minister for transport and aviation believes that:
The following entities (and no others) are qualified to hold a legal or beneficial interest by way of ownership in an aircraft registered in the Bahamas or a share therein:
Mortgages and encumbrances
Is there a domestic register for aircraft mortgages, encumbrances and other interests? If so, what are the requirements and legal effects of registration?
No designated domestic register exists for aircraft mortgages, encumbrances and other interests in aircraft. Aircraft mortgages, encumbrances and other interests may be recorded with the Registrar General’s Department pursuant to the provisions of the Registration of Records Act.
What rules and procedures govern the detention of aircraft?
Aircraft detention is governed principally by the Civil Aviation Act 2016 and applicable regulations. Detention may arise in cases where, pursuant to Regulation 14(4) of the Civil Aviation (General) Regulations 2017, an authorised person (ie, any person authorised by the director general, either generally or in relation to a particular case or class of cases) determines that an aircraft is intended or likely to be flown in such circumstances that the flight would involve an offence in contravention of the Civil Aviation (General) Regulations or be a cause of danger to persons in the aircraft, or to persons or property on the ground. Under Regulation 18 of the Civil Aviation (General) Regulations, if the director general or an authorised person believes that a flight would be dangerous to any person or property and contravenes any provision of the regulations, or is likely to be flown in a condition unfit for the flight or where any aircraft is intended or likely to be flown in such circumstances that a provision relating to the licensing of air transport in the Bahamas would be contravened in relation to the flight, the director general or an authorised person may direct the operator or the pilot in command of the aircraft that he or she is not to permit the aircraft to make a particular flight or any other flight of such description as may be specified in the direction until the direction has been revoked by the minister of transport and aviation or any authorised person. Necessary steps may also be taken to detain the aircraft.
Section 52 of the Civil Aviation Act provides that aircraft registered in a country or territory which is a party to the Chicago Convention, or such other aircraft as prescribed by the minister of transport and aviation, may not be detained or seized where there is lawful entry into or transit across the Bahamas on the grounds that the construction, mechanism, parts, accessories or operation of the aircraft infringes a patent, design or mode.
Safety and maintenance
What rules and procedures govern aircraft safety and maintenance?
Safety requirements are set out in the Civil Aviation (General) Regulations and the schedules therein. The regulations state that, for Civil Aviation Act and Civil Aviation (General) Regulations purposes, the schedules therein will have effect with respect to the standards, practices and procedures adopted and applied in the Bahamas pursuant to the Chicago Convention on International Civil Aviation, which the Bahamas became a party to on June 26 1975, and includes the international standards and recommended practices and procedures adopted by the International Civil Aviation Organisation under Article 37 of the Chicago Convention and contained in the annexes therein. The Civil Aviation (General) Regulations include a series of schedules which prescribe a broad range of safety-related requirements in detail, including standards that apply during the issuance and renewal of airworthiness certificates and relate to the continuing airworthiness of aircraft (encompassing aircraft maintenance requirements, performance standards and maintenance records and entries). The schedules provide specific technical safety requirements in support of the Civil Aviation (General) Regulations to ensure that operations in the Bahamas meet the international standards for aviation safety maintenance of aircraft and operations of aircraft in general aviation, aerial work and commercial air transport activities. Schedule 5 makes specific provisions for continuing airworthiness of aircraft.
What is the state of regulation on unmanned aerial vehicles (drones) in your jurisdiction?
Unmanned aerial vehicles (drones) are regulated in accordance with Schedule 27 of the Civil Aviation (General) Regulations. Schedule 27 regulates the operations, certificates and licences in respect of drone operations in the Bahamas. Penalties are imposed for non-compliance with Schedule 27.
Accidents
How are air accidents investigated in your jurisdiction?
Air accidents are investigated by the Air Accident Investigation Department, which was created pursuant to Part VIII of the Civil Aviation Act 2016 and headed by the chief investigator of air accidents. Investigations are conducted pursuant to the Civil Aviation (Investigations of Air Accidents and Incidents) Regulations 2017. The chief investigator must designate the investigator-in-charge, who is vested with powers and duties to carry out an investigation in the most efficient way and within the shortest time possible. On completion of an investigation, the chief investigator must prepare a draft report for circulation to and comments from certain authorities, including:
Comments are considered and included or appended in a final report prepared by the chief investigator. The report is submitted to and made public by the minister of transport and aviation. The sole objective of the investigation of an accident or incident is the prevention of future accidents and incidents, and in no case is the purpose to apportion blame or liability.
What liability regime governs death, injury and loss arising from air accidents?
Death, injury and loss arising from air accidents are governed by Part IX of the Civil Aviation Act. Generally, damages in respect of loss or damage suffered by any person or property during flight, take-off or landing, unless caused or contributed to by the negligence of the person by whom it was suffered, are recoverable without proof of negligence or intention or other cause of action as if such loss or damage had been caused by the wilful act, neglect or default of the owner of the aircraft. Further, liability for death, injury and loss arising from air accidents in respect of non-international journeys is governed by the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order 1953. However, liability for death, injury and loss arising from air accidents in respect of international journeys is governed by the Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953. For international journeys, certain provisions of the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air (as annexed to the relevant 1953 Bahamas order) apply.
What are the reporting requirements for air accidents?
If an accident occurs which needs investigating by the chief investigator, he or she must be notified via the quickest available means by one of the following:
The local police authorities must also be notified immediately. When the aircraft involved has a maximum take-off mass of over 2,250 kilogram or is a turbo-jet powered aircraft, the chief investigator must forward a notification of the accident without delay via the quickest available means to:
States having notice of the accident are given an opportunity to review and comment on a draft final report prepared by the chief investigator. On production of a final report, the minister for transport and aviation may choose to make it publically available.
Airports
What rules govern the ownership of airports (both public and private)?
Airport ownership in the Bahamas is governed by the Airport Authority Act and the Civil Aviation Act 2016 (in particular Part VII). The Section 2 of the Airport Authority Act, as amended by Section 3 of the Airport Authority (Amendment) Act 2016, provides that certain airports specified in Schedules 1 and 3 of the Airport Authority Act must be transferred to the Airport Authority. Section 35 of the Civil Aviation Act provides that no person can construct or prepare to construct any private aerodrome in the Bahamas without prior written permission from the Bahamas Civil Aviation Authority (BCAA).
What is the authorisation procedure for the operation of airports?
Established under Section 3 of the Airport Authority Act, the Airport Authority is responsible for the management, maintenance and operations of several airports, which are transferred to it under the act. This includes providing aircraft ground handling services and airport security.
As regards private airports, Section 36 of the Civil Aviation Act provides that no person can operate or permit operation on land that he or she occupies of any aerodrome which is not registered in accordance with the section. Applications for registering an aerodrome under the section are made in writing to the BCAA by or on behalf of the occupier of the land on which the aerodrome is constructed. The BCAA may register the aerodrome on such terms and condition as it sees fit, and may also require an aerodrome used for commercial air transport operations to be licensed or certified in accordance with regulations made by the minister for transport and aviation or in accordance with standards and requirements imposed by the BCAA.
What ongoing operating requirements apply (including obligations relating to safety, security and facilities maintenance)?
Under Section 21(1) of the Civil Aviation Act, the BCAA must meet all of the requirements specified in Annex 17 (Security) of the Convention on International Civil Aviation. Accordingly, its duties and powers include:
Section 25 of the Civil Aviation Act provides that an aerodrome operator in the Bahamas must establish and maintain an aerodrome security programme (ASP) approved in writing by the BCAA and must not operate without or contrary to an approved ASP. BCAA-approved ASPs must provide adequate security protection of the aerodrome, aircraft and navigation facilities and comply with applicable NCASP requirements. Section 28 of the Civil Aviation Act provides for the creation of a national civil aviation security committee, which must coordinate the implementation of the NCASP at all aerodromes in the Bahamas.
What airport charges apply and how are they regulated?
Section 6 of the Airport Authority Act, as amended by Section 5 of the Airport Authority Amendment Act, provides that the Airport Authority has as part of its functions the setting of fees and charges for airports in accordance with International Civil Aviation Organisation recommendations and the collection of aeronautical and non-aeronautical fees and charges.
Airport charges include:
The imposition and varying of fees and charges are regulated by the Airport Authority (Fees and Charges) Regulations 2009.
What regulations govern access to airports?
Under Section 25 of the Civil Aviation Act, aerodrome operators in the Bahamas must establish and maintain an ASP approved in writing by the BCAA. The APS must adequately provide for security protection of the aerodrome in compliance with the NCASP, including the programme’s requirement for access control for persons and vehicles and the control and issuance of aerodrome security passes and vehicle passes. Section 41 of the Civil Aviation Act provides that, where appropriate notices are posted, a person who trespasses on land forming part of a government aerodrome or an aerodrome registered, licensed or certified pursuant to regulations made under the act commits an offence, will be liable on summary conviction to a fine not exceeding $5,000 or imprisonment for a term not exceeding six months (or both if deemed appropriate).
What regime governs the allocation of airport slots (including slot transfer, revocation and disputes)?
No formal regime governs the allocation of airport slots. Existing airport capacities are considered adequate to meet the demands of users.
How are ground handling services regulated?
Under Section 6 of the Airport Authority Act, as amended by Section 5 of the Airport Authority (Amendment) Act, the functions of the Airport Authority include establishing provisions for aircraft ground handling services on a commercial basis. However, there are no Bahamian ground handling regulations.
Competition issues
Do any sector-specific competition regulatory/legal provisions apply to the aviation industry in your jurisdiction?
No sector-specific competition regulatory or legal provisions apply to the aviation industry in the Bahamas.
Code sharing and joint ventures
What (if any) competition concerns arise in relation to code sharing and air carrier joint ventures?
No code sharing and air carrier joint-venture concerns are relevant to the Bahamas.
What rules govern state aid in the aviation industry? Do any exemptions apply?
No rules govern state aid in the aviation industry.
Have there been any notable recent cases or rulings involving competition in the aviation industry?
There are no notable recent cases or rulings involving competition in the aviation industry.
Dispute resolution
What aviation-related disputes typically arise in your jurisdiction and how are they usually resolved?
Disputes may arise in circumstance where foreign financial institutions or foreign lessors of aircraft fail to note their interest in aircraft owned or operated in the Bahamas by Bahamian owners or operators and there is a payment default. Such disputes are usually resolved by private negotiations between the relevant parties.
