Firm: Geni & Kebe [DLA Piper]
1. Which government authority in your country has primary responsibility for the regulation of aviation and the registration of aircraft?
The National Agency of Civil Aviation of Senegal (ANACS). The Agency is an administrative department of the State and is under the hierarchical authority of the Minister for Civil Aviation
2. Can foreign-owned aircraft be registered on your national aircraft register, for example when leased to an airline based in your country?
An aircraft may be registered in Senegal if it is owned by:
3. Are there any limits/restrictions on the age of the aircraft that may be registered or operated in your country?
We are not aware of such limits
4. Who is entitled to have their interests recorded on your national aircraft register?
The owner, the lessor, preferred creditors and mortgagees.
5. Would a mortgage governed by a foreign law over aircraft and/or engines be recognised in your country?
In general, yes as applicable under either the 1948 Geneva Convention or 2001 Cape Town Convention.
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?
The only formality under Code of Civil Aviation is that the mortgage is granted in writing and must describe the each of the elements covered by the mortgage.
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?
No. This is not an issue in Senegal. If the engine does not belong to the owner of the airframe, it would not become the airframe owner’s property or subject to a mortgage over the airframe by reason of installation. However, it would be appropriate to register with the ANACS property rights of any engine, propeller, appliance or parts of aircraft to be used on an aircraft. This recording is one of title.
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 to all three.
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 – Senegal has adopted the IDERA under the Cape Town Convention Aircraft 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?
Not applicable. See 9 above and note that the cancellation of the registration is made by the owner (not lessee) of the aircraft to the officer responsible for keeping the register.
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)?
We are not aware of any legal obligation for this kind of charges on non-operators but note Senegal's declaration under Cape Town for preserving state rights to detain. See also 17 below. Analysis of this goes beyond the scope of this summary.
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, Senegalese courts uphold choice of law and jurisdiction clauses. Also covered by Cape Town Convention declaration.
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?
Upon termination of the lease attributable to the lessee, the lessor may recover possession of leased equipment by voluntary surrender by the lessee. If it refuses to comply, the lessor will need assistance from the Senegalese courts to order the lessee to return the equipment.
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, in these cases Senegalese law provides for emergency procedures to allow the lessor to take possession of its property. Speedy relief is also provided for by Senegal’s Cape Town declarations. However, note foreign claimants may be ordered on request of the defendant to provide security.
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?
To enforce a conventional mortgage there will be no need for judicial proceedings to sell the relevant equipment. The lender can arrange a sale itself and self help remedies are allowed under Cape Town Convention declaration.
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.
No, our courts do not have much experience of repossession/foreclosure action involving aircraft.
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?
Yes, the failure to pay suppliers, airport charges or maintenance providers can create liens and encumbrances over the aircraft. So, the owner or the mortgagee cannot repossess the aircraft, without the prior written consent of the owner of any registered interest ranking in priority of its claim in compliance with the Cape Town Convention as ratified by Senegal. Please see the declarations made for more details.
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?
The owner or the non-operating lessor and operator are jointly and severally liable vis-à-vis third parties for damages. However, if the lease was registered in the aircraft register, the owner and the lessor are not liable as far as there is no fault on their 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?
Air carriers must take out insurance to cover liability for accidents, particularly in respect of passengers, baggage, cargo, mail and third parties on the surface, in accordance with international conventions. We are not aware of any restriction on placing reinsurance but would need to investigate that further in any particular case.
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?
The declarations made by Senegal under the Cape Town Convention and protocol.
Anyone, whether a lessor or a financier, who relies on documents affecting title to or ownership of any civil aircraft registered in Senegal and on any engine, propeller, appliance or spare parts for that aircraft should be registered in the aircraft register so that its right can be recorded for recognition against third parties.