Firm: Chibesakunda & Co
Contact Robin Durairajah and Eustace Ngoma
1. Which government authority in your country has primary responsibility for the regulation of aviation and the registration of aircraft?
Department of Civil Aviation (“DCA”)
2. Can foreign-owned aircraft be registered on your national aircraft register, for example when leased to an airline based in your country?
Yes with the necessary approval. The Air Navigation Regulations provide that those qualified to be owners of Zambian aircraft are (a) citizens of Zambia or persons bona fide resident in Zambia or such other persons as the Director may approve and (b) bodies corporate, either established under and subject to the law of Zambia or established under and subject to the laws of such other country as the Minister may approve.
3. Are there any limits/restrictions on the age of the aircraft that may be registered or operated in your country?
No but approval is needed from the DCA prior to the import of an aircraft into Zambia and the Airworthiness Section of the DCA will require to inspect the aircraft prior to registration.
4. Who is entitled to have their interests recorded on your national aircraft register?
The Air Navigation Regulations provide for the register to show the person appearing to the Director of the DCA to be the owner of the aircraft (registered owner) and such further particulars as the Director may fix. So if the registered owner is not the actual owner, the practice is to send the DCA a letter informing him of the actual owner / lessor at the time the aircraft is registered locally. See 2 above. Similarly a mortgagee could request that the DCA note the particulars of a mortgage.
5. Would a mortgage governed by a foreign law over aircraft and/or engines be recognised in your country?
Yes in principle.
6. To be recognised under your laws, must a lease or mortgage over an aircraft and/or engines be in a particular form or language, are there any special terms that it must contain and/or must it be registered or filed anywhere?
There is no specific form required by law. We would generally lodge a copy of the lease agreement with the DCA though it is not mandatory to do so.
7. If an engine owned by a third party is installed on an aircraft, would your country’s law treat that engine as being subject to the same ownership as the aircraft itself? In other words is there a risk that by physical installation, the engine owner loses its title to the engine or that the engine becomes subject to any mortgage which exists over the aircraft on which it is installed? Would a nameplate fixed on the engine, confirming its separate ownership make any difference?
Absence evidence to the contrary, there may be a presumption that the engine is subject to the same ownership as the aircraft. If the engine is in different ownership, an ownership plate fixed to the engine could be useful and see answer 4 above – the engine owner may want its particulars noted on the register by the DCA.
8. Has your country ratified and brought into force any of the following aviation related conventions: 1944 Chicago Convention, 1948 Geneva Convention and 2001 Cape Town Convention (with its Aircraft Equipment Protocol)?
Yes for the 1944 Chicago Convention. No for 1948 Geneva and 2001 Cape Town Conventions.
9. Does the local civil aviation authority provide assurances to lessors and financiers as to prompt deregistration of the aircraft (for example the IDERA under the Cape Town Convention)?
Yes, a deregistration undertaking letter may be available (not an IDERA as Zambia has not adopted the Cape Town Convention/Aircraft Equipment Protocol).
10. Are powers of attorney from a local airline in favour of a lessor or mortgagee likely to be effective to allow the lessor or mortgagee to deregister the aircraft? Can such powers be irrevocable, be governed by a foreign law and/or do they need to be in any particular form for local recognition?
Yes, they should be effective though would not be necessary if the lessor is the registered owner of the aircraft. A power of attorney can be made irrevocable under Zambian law (subject to insolvency). We would recommend the power be notarised. Note the efficacy of such powers has not, we understand, been subject of a contest in Zambia.
11. Are there any charges which would have to be paid before an aircraft can be deregistered from your national register (e.g. local air navigation fees)?
Yes. There are prescribed/ statutory fees to be paid to the DCA.
12. Would courts in your country generally uphold a choice of law and jurisdiction clause in an aircraft lease or loan document between commercial parties?
Yes - subject to a bona fide choice and public policy. Zambia has reciprocal enforcement arrangements with England & Wales.
13. If the lease is terminated for lessee default, would the lessor be entitled to repossess (by taking physical possession) of the relevant aircraft or engine or does it need the prior permission or order of a local court or agency?
There is no statutory provision on this. If it is agreed in the lease that the lessor can take possession on lessee’s default, then in principle yes, though in practice if the lessee objects and refuses to hand the aircraft back, we expect that a court order would be required.
14. In clear cases of a lessee default is there an effective summary procedure or interim relief available in your courts allowing lessor prompt repossession of the aircraft? Would security be required to avail of such process?
Yes, summary procedure for repossession in straightforward cases should be possible and injunctions are available and can be obtained fairly quickly if there is a risk of the property being removed from the country or deteriorating. Security might be required.
15. What is the procedure for a lender to enforce a mortgage over the aircraft or engine in your country when the borrower is in default? For example must the aircraft be sold by the court or can the lender itself take possession and arrange a sale?
This has not arisen in practice in Zambia as far as we have been able to ascertain. In general Zambian law on this would be similar to English law and if the mortgage allows the lender to take possession and sell the aircraft privately, that should not cause an issue under Zambian law.
16 Do the courts in your country have experience of repossession / foreclosure action involving aircraft? If so, please provide some details and indicate the time such proceedings generally would be expected to take from start to finish.
Not that we are aware of.
17. Where an aircraft is leased to (i.e. not owned by) the airline operating it, can that airline create liens or encumbrances over the aircraft for example if it fails to pay suppliers, airport charges or maintenance providers? If so, would the existence of any such liens (e.g. in respect of unpaid airport charges) prevent an owner or mortgagee from repossessing the aircraft?
There is no statutory provision for the airports / DCA to have a lien on the aircraft for unpaid charges due to them. A repairer’s lien will arise to the extent the repairer has conferred value on the aircraft, has not been paid and the aircraft remains in its possession. This sort of lien could prevent an owner or mortgagee from repossessing the aircraft without first paying or providing security for the value.
18. Are there any circumstances under your country’s laws where a non-operating lessor, owner or a mortgagee could be held liable for damage caused by the aircraft whilst operated by an airline even if there is no fault on the part of lessor, owner or mortgagee?
No, not without fault on its part.
19 Are there any legal requirements in relation to insurance and/or reinsurance of an Aircraft registered in or operated to/from/within your country? For example is there a minimum liability insurance amount required and must some or all of the cover be taken out with local insurers?
Evidence of insurance is required as a condition of the operation of the aircraft. Local insurance (e.g. Zambia State Insurance Corporation) would be expected with reinsurance via international insurance markets.
20. Are there any other specific issues arising under your country’s laws that you feel a lessor or financier of aircraft or engines ought to be aware of when considering whether to lease or finance an aircraft to be based or registered in your country?