LAW OFFICE OF MARK A. SCHNEIDER P.A.

PRINCIPAL/MAILINGOFFICE: SATALITE OFFICE: 1100 LEE WAGENER BOULEVARD 807 VIRGINIA STREET SUITE 321 KEY WEST, FL 33040 1'1. LAUDERDALE, 33315 TELEPHONE (954) 661-6275

E-MAIL ADDRESS: [email protected] MARKA. SCHNEIDER, ESQ. Al.SO ADM!TfED IN OKLAHOMA,GEORGIA AND TEXAS

PH.D INAEROSPACE ENGINEERING May 7, 2021

VIA REGULATIONS.GOV AND EMAIL

Mr. Brett Kruger HAVANA AIR'S OBJECTION Chief, Foreign Carrier Licensing Division U.S. Department of Transportation 1200 New Jersey Avenue SE Washington, D.C. 20590

RE: Motion of Sky Way Enterprises, Inc. Application of Skyway Enterprises, Inc. for Emergency Exemption Dated April 30, 2021

Docket No: OST:2020-0129

Dear Mr. Kruger:

This firmrepresents Viajehoy LLC, d/b/a Havana Air ("Havana Air") with regard to its OBJECTION to the U.S. Department of Transportation's granting the Application of Sky Way Enterprise, Inc. ("Sky Way") for Emergency Exemption filed on April 30, 2021. The gravaman of Sky Way's argument is an attempt to sidestep several key facts that should guide the US Department of Transportation. ("US DOT") in rendering a fair, proper, and just decision. Havana Air also adopts and incorporates by reference into this OBJECTION Cuba Charter Services, LLC d/b/a Aerocuba's OBJECTION filed by Jason E. Maddux of the law firmGarofalo GoerlichHainbach datedMay 5, 2021.

In addition to Cuba Charter Services, LLC's objection, Havana Air would state this is the same thinly veiled request made on October 16, 2020 which request was denied by the US DOT. Based upon the similarities of this request, Havana Air would also also Mr. Brett Kruger May 7, 2021 Page 2 incorporate by reference its OBJECTION stated in its response letter addressed to Robert Finamore dated October 22, 2020. A copy is attached hereto.

Further, what is continually absent from Sky Way's application is there are other less restrictive, and policy consistent means of accomplishing the same result. In fact, there is no need to even file this request. Docket DOT-OST-2020-0129 P. 3 states that:

...except that nothing in this condition shall preclude the operation of authorized public charters to and fromHavana ...

[ emphasis added]

Sky Way is a 14 C.F.R Part 135 on demand charter operator with four (4) Shorts 360 aircraft. Why should Sky Way be given a Special Exemption over those public charter operators whose aircraft are sitting on the tarmac at Miami International? American , Jet Blue, iAero all have flights to Havana, Cuba. flies a Boeing 787 Dreamliner, Jet Blue is flying Airbus 320/321 and iAero 737-400 and 800s. Certainly, any of these 14 C.F.R. Part 121 air carriers are capable of transporting medical supplies. Further, "Few sectors have struggled as much as the industry.

According to the International Air Transport Association, airline carriers1 [121 operators] are expected to see a record loss of $157 billion in 2020 and 2021." While all parties to this process are sympathetic to the Cuban people, and to the world at large, should we also be directing some of our financial sympathy to those airlines that are the backbone of the US economy - the commercial airline industry.

In Sky Way's application it states that it is taking medical packages weighing 3.3 lbs, with the Shorts 360 having a payload of 7500 lbs. If each package weighs the same, it's then reasonable to assume that what is in each package is also identical. So if that's true, and the aircraft were full, that would translate to 2,273 medical packages - not just t.o 750 persons as represented by Sky Way. 750 medical packages at 3.3 lbs per would weigh 2,475 lbs. That leaves a payload capachy for an additional 5,025 lbs. What else is at play here? Who schedules cargo flights with 2/3 of the capable payload capacity as empty space? It remains Havana Air's contention that Sky Way, with Invicta .Group Services' assistance is hauling luggage or other cargo as part of a commercial operation. And if that's not accurate, then allow the Part 121 carriers to take the medical packages, hence avoiding the need to filean Application forExemption.

While conspicuously not addressed in Sky Way's Application, but also highly relevant is that Cuba has limited the inbound number of flights and separated their arrival times in order that proper COVID-19 testing can be completed on those individuals arriving. It is highly unlikely, even if the Sky Way's Application was granted, that the IACC of Cuba would provide Sky Way landing rights.

1 https://hub.jhu.edu/2020/ 12/2 8/airline-business-recovery-after-pandemic/ Mr. Brett Kruger May 7, 2021 Page 3

Once again, this is an attempt to implore the US DOT to grant an Exemption that is wholly unnecessary. Based upon the afore-stated, Havana Air respectfully requests that the US DOT deny the Application of Sky Way Enterprises, Inc. for an Emergency Exemption on the grounds set forth herein, and those contained in its Letter of Objection dated October 22, 2020, and Cuba Charter Services LLC d/bla Aerocuba's objection dated May 5, 2021.

Very truly yours,

Isl Mark A. Schneider, for the firm of,

MARKA. SCHNEIDER, P.A.

MASlce

Attachments LAW OFFICE OF MARK A. SCHNEIDER P.A.

PRINCIPAL/MAILINGOFFICE: SATALIIB OFFICE: ll00LEE WAGENER BOULEVARD 807 VIRGINIA STREET SUIIB 321 KEY WEST, FL 33040 IT. LAUDERDALE, FLORIDA 33315 TELEPHONE (954) 661-6275 FAX (954) 436-1471

E-MAIL ADDRESS: [email protected]

MARKA. SCHNEIDER, ESQ. ALSO ADMITI'EDIN OK.LAHOMA, GEORGIA AND TEXAS

PH.D IN AEROSPACE ENGINEERING October 22, 2020

VIA REGULATIONS.GOV AND EMAIL ro [email protected]

Mr. Robert Finamore HAVANA AIR'S OBJECTION Chief, Foreign Carrier Licensing Division U.S. Department of Transportation 1200 New Jersey Avenue SE Washington, D.C. 20590

RE: Application of Skyway (sic) Enterprises, Inc. foran Emergency Exemption

Docket No: OST:2020-0129

Dear Mr. Finamore:

This firm represents Viajehoy LLC, d/b/a Havana Air ("Havana Air") with regard to its OBJECTION to the U.S. Department of Transportation's granting of an exemption to allow Skyway (sic) Enterprise, Inc. (registered with the State of Florida, Secretary of State as a Michigan for profit corporation licensed to do business in Florida as "Sky Way Enterprises, Inc." - hereinafter referenced as "Sky Way" - See attached Exhibit "A") or Invicta Group Services, Inc. ("Invicta Group Services") acting as Sky Way's alter ego from conducting illegal charter flights from the to Cuba. Invicta Group Services filed its Articles of Incorporation with the State of Florida, Secretary of State in 2015 as a for profit corporation with Mildred Diaz as its President. A copy of Invicta Group Services' Florida state filing including its Articles of Incorporation is attached hereto as Exhibit "B". There is no information or belief that Invicta Group Services has any ownership interest in SkyWay.

Havana Air's OBJECTION to the U.S. DOT granting an exemption to Sky Way is based upon the following criteria: Mr. Robert Finamore October 22, 2020 Page 2

1. Sky Way has relinquished command and control of its charter operation to Invicta Group Services in violation of its General Operation Specifications. Sky Way licensed by the Federal Aviation Administration ("FAA") to operate as a 14 C.F.R. Part 13 5 ("FAR Part 13 5 ") On Demand charter operator, Certificate Designator: D KEA, supervised by the Orlando FSDO, SO15. Sky Way's web site is represented by the following web link: https://skyway360.corn/. As a FAR Part 135 operator, Sky Way's is governed, in-part by its General Operating Specifications. See 14 C.F.R. Part 119 Certification of Air Carriers and Commercial operators - more specifically Part119 §49 - hereinafter generally referred to by the industry as "OP Specs". Within Sky Way's OP Specs is a general specificationreferred to as A008. OP Spec A008 refers to Operational Control of the aircraftoperated by the certificateholder. See FSIMS 8900.1 et. seq.

A008 is a mandatory section within the operator's OP Specs and is to be regarded by the certificateholder that conducts operations under FAR Part 135 as the basis for which it provides operational control for its flight operations. As set forth as a template by the FAA, the pertinent parts of A008 are set forth below. The area for which Havana Air contents Sky Way is in violation is italicized.

b. CertificateHolder Responsibilities:

(l) The certificate holder retains all responsibility for the operational control of aircraft operations, and thus the safety of each flight conducted under this certificate and operations specification, including the actions or inactions of all direct employees and agents of the certificate holder.

(2) This responsibility is not transferable to any other person or entity.

(3) The certificate holder's responsibilityfor operational control supersedes any agreement, contract, understanding or arrangement, either oral or written, expressed or implied, between anypersons or entities.

c. The certificate holder may not engage in any of the following practices and shall not:

(1) Franchise or share the certificate holder's authority for the conduct of operations under its certificate and operations specifications to or with another person or entity.

(2) Use a "Doing Business As" (DBA) name in any way that represents an entity that does not hold an air carrier or operating certificate and operations specificationsas having such a certificateand operations specifications.

(3) Engage in a wet lease contrary to 14 CFR § 119.53. In accordance with § 119.53(b), the certificate holder may not wet lease from or enter into any wet leasing arrangement with any person not authorized by the FAA to engage in Mr. Robert Finamore October 22, 2020 Page 3

common carriage operations under 14 CFR part 121 or 135 (as appropriate), whereby that other person provides an aircraftand at least one crewmember to the certificate holder. A lease, or other business arrangement with a lease, is considered a wet lease if any of the following conditions exists:

(4) Transfer, surrender, abrogate, or share operational control responsibility with any party.

(5) Engage in any arrangement with an aircraft owner, lessor or any other person or entity, such as an aircraft management entity, which allows the use of an aircraft for operations under these operations specifications without a complete, effective and sustainable transfer of operational control to the certificate holder for all part 135 operations conducted under these operations specifications. d. Elements of Operational Control. The following items are essential elements of operational control and are required to be components of the operational control system, used by the certificate holder, and as described or referenced in subparagraph a above:

(1), (2) (3)...

(4) Use of Other Business Name(s) (DBAs): (a) The certificate holder may not allow or create the circumstances that would enable any other entity to conduct a flight for compensation or hire under part 119, 121 or 135 as ifthat entitywere the certificateholder.

(b) The certificate holder shall not operate an aircraft under part 135 under the name or fictitious name of any other person or entity, unless authorized in operation specification A001 of these operations specifications. Such authorization does not authorize any person or entity, other than the certificate holder, to conduct operations under the certificate holder's certificate and operations specifications. (c) The certificate holder may not allow the use of a fictitious name to obscure the certificate holder's responsibility and accountability to exercise operational control over its flight operations.

(5) AircraftOperation Agreements and Other Arrangements.

(a) In accordance with§ 119.53(b), the certificateholder may not wet lease from or enter into any wet leasing arrangement with any person not authorized by the FAA to engage in common carriage operation under parts 121 or 135, whereby that other person provides an aircraft and at least one crewmember to the Mr. Robert Finamore October 22, 2020 Page 4

certificate holder. This requirement does not prohibit the separate use of a crewmember by the certificateholder when that crewmember is also employed by the aircraft's owner or lessor.

(b), (c) ...

( d) The certificate holder may not operate any aircraft in part 35 operations, which is subject to an agreement between the certificate holder and the aircraft owner or any lessee of the aircraft, if that agreement shifts liability and accountability for the safety of the certificate holder's Part 135 flight operations from the certificate holder to the aircraftowner or other parties.

The potential violations by Sky Way of its OP Specs is set forth in a string of emails beginning on August 12, 2020 between David Nesslein of Havana Air and Don Bowman, Director of Business of Sky Way. On August 12, 2020 Mr. Nesslein inquires about the use of Sky Way's Shorts 360 for flights to Cuba. Order 2020-8-4 Suspending U.S. Charter flights to Cuba, while in process was not issued until August 13, 2020 (and did take effect until October 13, 2020. See P. 1 of Order entered by David E. Short, Deputy Assistant Secretary). Also, on August 12, Mr. Bowman attaches a copy of Sky Way's ad hoc charter information, MIA-HAV -MIA. On August 13, Mr. Bowman responds that Sky Way has operated flights to Havana as recently as mid-June 2020. On August 31, 2020 Mr. Bowman sends an email to Mr. Nesslein that states the following:

"We still have the aircraft and crew available for this proposed one-way humanitarian flight MIA-HAV. The best date for the trip will be this coming th Saturday, September 5 • HOWEVER, since we last spoke, Skyway Enterprises has entered into an exclusive agreement with Invicta Group Services for flights to the Island For Skyway to operate the trip you would need to contact it through Mildred Diaz at Invicta. "

[Emphasis added in Italics]

For the email string, See attached Exhibit "C".

It certainly appears from Mr. Bowman's last sentence in the August 31st email that Sky Way has turned over complete command and control of the Cuba flights to Invicta Group Services expressly in violation of A008 of its OP Specs. In fact, Mr. Bowman goes on to state that "I've spoken to Mildred and she is aware of the possible flight, and has agreed to the same commercial terms as I had originally quoted you, specifically:... " Also see Exhibit "C". Now Ms. Diaz, the President of Invicta Group Services is in complete command and control of the aircraft, including take-off and departures, pricing and scheduling, and dispatch. If the intent in Mr. Bowman's unsolicited response was that Sky Way had either dry or wet leased the aircraft to Invicta Mr. Robert Finamore October 22, 2020 Page 5

Group Services, then those aircraft should have been removed from Sky Way's charter certificate. However, there is no evidence that has occurred.

While Havana Air cannot state with certainty what the legal documents are between Sky Way and Invicta Group Services, it is certainly clear from the email string sent by Sky Way's Director of Business that if you want to charter Sky Way's aircraftto Cuba, you have to go through a non-owner of the FAR Part 135 operator- Mildred Diaz, President of Invicta Group Services.

Based upon the afore-stated, Havana Air respectfully requests the arrangement between Sky Way and Invicta Group Services represents a de facto violation of the F ARs. It is axiomatic that the U.S. DOT cannot grant the exemption on this ground alone. Further, it would be reasonable and proper that the representations set forth in Mr. Bowman's emails be referred to Sky Way's FAA Principal Operation's Inspector for further investigation and determination.

2. Is Sky Way the real party in interest to file the application? The real party in interest rule is a rule of law that the person entitled by law to enforce a substantive right should be the one under whose name the action is prosecuted. It is not the intent of Havana Air to engage in a time consuming argument on real party in interest. However, Havana Air raises this issue on the basis if in fact, even if unintentionally, Sky Way for purposes of the proposed flights to Cuba, has turned over command and control of the aircraft to Invicta Group Services, who is the proper party to file the Application? Of course, Sky Way is the FAR Part 135 certificateholder, and hence is arguably the proper party. However, based upon Mr. Bowman's relinquishment of operational control of Sky Way to Invicta Group Services, it does nonetheless raise the question.

3. Invicta Group Services request for an exemption is a thinly veiled commercial operation in principal, and not purely humanitarian based. Invicta Group Services, is owned and operated by Mildred Diaz - who worked for a local Miami FAR part 121 operator. The operator had a Cuban license to haul unattended cargo to Cuba. Unattended Cargo from the United States has been denied for over 10 years since the Cuba authority does not have the capacity to handle unattended cargo. Currently, cargo is delivered by passengers in the form of excess baggage onboard either a public or private charter (until October 13, when private charters were suspended). Once public chartersare resumed, presumably, cargo will again be transported in passenger's luggage. Whether or not these "humanitariancharters" are an attempt to jump-start cargo flightsto Cuba in the futureis at this time speculation, and airport rumor.

What is not speculative is how a commercial transaction is couched as "humanitarian" aid in the formof small 3.3 lb parcels containing food, medicine, hygiene and medical supplies. Seen P. 4 of Sky Way's Application. Based upon the cargo capacity of 7500 lbs of a Shorts 360, that equates to 2,273 parcels per flight. Ms. Diaz in her Letter in Support states it is for 7 50 families. You are leftto guess if that is 3 parcels Mr. Robert Finamore October 22, 2020 Page 6 per family? There is no representation by the Applicant that each parcel contains the same product(s). A 16 oz can good is 1 pound. What could possibly be in a 3.3 lb parcel of humanitarian aid that constitutes food, medicine, hygiene and medical supplies. This is carefully omitted from Sky Way's application. Where is this aid coming from? If it is being donated, why didn't the applicant so state? That certainly would be an important factor to advocate on behalf of the applicant. While WAJIRO has served a letter to DOT in support of granting the exemption, its reasoning is based upon WAJIRO's authorization by the Bureau of Industry and Security in Cuba to send masks, PPE and cleaning supplies. Nothing in Sky Way's Application provides that any of these supplies are being provided in its 3.3 lb parcel. In fact, not one the items being supplied by Invicta Group Services are going to any hospital or medical provider in Cuba, but families directly.

Who in the collective group is a I.R.S. 501 (c)(3)? There is no documentation that Invicta Group Services is a not for profit either in the State of Florida, or with the I.R.S. As filed with the Florida Secretary of State in its Articles of Incorporation, Invicta Group Service is a "for profit" corporation - as is Sky Way. Why not work with Missionary Flights International who operate a DC3 fromFt. Pierce and provide humanitarianflights to the Bahamas, Haiti and the DominicanRepublic?

The reason is that all parties involved are receiving some form of cost-plus remuneration. Invicta Group Services receives money per pound for the shipment of the parcel, and in-tum uses part of these funds to pay Sky Way a sum certain for its rotation costs. It retains the balance as its profit.It is not represented by the applicant that any of the parties to the transaction are donating the aircraft, fuel, supplies or time. This operation is therefore based solely upon a commercial purpose in contravention to the Order Suspending U.S.-Cuba Charter operations.

The Suspension of U.S.- Cuba Charter Authorization, Order 2020-8-4, paragraph 3 states:

The Department tentatively amends all U.S. air carrier certificates issued under section 49 U.S.C. § 41102 and all foreign air carrier permits issued under section 49 U.S.C. § 41302, to add the following condition as discussed in the text of this order, to be effective three days after the service date of a final order in this matter: Until further order of the Department, the holder shall not operate any charter flight between the United States and any airport in Cuba, except that nothing in this condition shall preclude the operation of authorized public charters to and from Havana, or other authorized charter flights for emergency medical purposes, search and rescue, and other travel deemed to be in the interest of the United States.

[Emphasis added] Mr. Robert Finamore October 22, 2020 Page 7

In reviewing Sky Way's Application, it is void of any criteria as to why the granting of an exemption to haul cargo from the United States to Havana, Cuba, which is nothing more than a thinly veiled commercial operation cloaked as humanitarian aid would be "deemed in the interest of the United States". The Applicant cites DOT Order 2005-9-2 whereby the DOT granted an emergency exemption for the carriage of humanitarian aid related to Hurricane Katrina's destruction of New Orleans. A US Carrier being granted an exemption to a US city is clearly distinguishable from the current application whereby sending items such as toiletries, and food, which is clearly not defined as "medical supplies", and when viewed in conjunction with the intent and purpose of the Helms-Burton Act, there is clearly no demonstrable argument presented that the transport of these items are "deemed in the best interest of the United States" - a burden imposed and to be clearly establish by the applicant.

While Invicta Group Services served its letter in support, it should be viewed with skepticism since it has a vested interest in the outcome as it apparently controls Sky Way, the FAR Part 13 5 operator and the cargo being transported.

Havana Air has served the Cuban community for over 10 years. It's relationship with SwiftAir as its primary air carrier is well documented. The objection is not founded in denying the Cuban people humanitarian aid, but rather the method being used to serve that alleged purpose. The exemption being sought is simply an attempt to do indirectly what can't be done directly - and should not pass even the most basic level of scrutiny by the U.S. DOT.

Based upon the afore-stated, Havana Air respectfully requests that the U.S. Department of Transportation deny Sky Way Enterprises, Inc.' s Application for an Emergency Exemption, and further, that the issue of a possible violation of Sky Way's OP Specs be reviewed to the satisfactionof the local FSDO.

Very truly yours,

/s/ Mark A. Schneider, forthe firmof,

MARK A. SCHNEIDER, P.A.

MAS/ce

Attachments