In the previous webinars of the Martyn Fiddler Aviation Risk series, the team examined key areas where risks occur in transaction and explained how you can best manage these risks. Having dealt with expected risk, Martyn Fiddler Aviation turn their attention in their third webinar to “how to handle the unexpected”, answering how you can prepare to manage something you can’t see coming.

Over the last five years we have all been hit by the unexpected; the pandemic, Brexit, financial crises. You will also have been affected by events closer to home, whether that be unforeseen aircraft technical issues, sudden absence of team members, or even IT and email crashes.

A checklist for the unexpected?

Most businesses have a business continuity plan which serves as a generic checklist of how to handle a crisis. Similarly this can be applied to aviation transactions and can be the difference between a positive or negative outcome.

1. Identify the issue

When the unexpected happens care must be taken to identifying the key issue arising as this will inform the other actions and decisions to be taken in managing the event.

In practice there will often be a ripple effect – a key issue to resolve but several others that will arise as a result. For example, if an aircraft is suddenly unable to fly, there may be knock on issues with future flights, routine maintenance or crew hours.

It is vital to consider very early on whether or not a potential reputational issue may arise. If in doubt you should appoint a dedicated person responsible for managing media and public relations. This is an incredibly important and dedicated role that you want in place at the outset.

2. Forming the team and lines of communication

It is highly likely that a small core team will already be involved if a transaction is underway when the unexpected event occurs. If not this should be formed quickly and consist of persons that control, operate and manage the business of the aircraft; people that are able to take decisions and have lines of communication with the owner. This core team will then need to identify whether any specialist and/or local advisors are required. This will depend on the nature and location of the event.

Lines of communication must be established as unexpected events often unravel quickly. As mentioned above, identifying persons who are permitted to take decisions is important – often in business transactions board level approval will be required for certain actions. Depending on the event external bodies, such as the relevant aircraft registry, may also need to be informed and have input.

3. Information gathering

Assessing what information is available and any additional information required will be essential for the team to take actions and decisions. In particular is there any critical information that is required to resolve the issue.

It is likely that different members of the team will have different information priorities, however,  it is unlikely that you will get all information immediately; realising that you are dealing with an unexpected scenario and that you might not be able to obtain all the information you’d hoped for is important, as you may need to make decisions made on ‘good enough’ information.

4. Timescales

Tempus Fugit! If the event has occurred during a transaction sequence then future transactional elements may need to be delayed. If there is an aircraft or crew incident then near future flights scheduled may need to be delayed, cancelled or alternative travel identified.

It will be important to notify all parties that will be impacted by a change in timescales ASAP to understand any additional issues this could present. Parties should be aware that flexibility will be required and any immovable timescales highlighted.

5. Identify the options

The team need to identify the options available to resolve the situation in order of priority and viability. This will include any immediate short term options (such as safe guarding the aircraft and crew, or providing copy documents if originals will be delayed) and, if applicable, any other options or considerations that will need to be resolved as a result of the event.

The next step will be to communicate the chosen option(s) to all relevant parties to see if there are any unintended consequences which result. Establishing timescales for plan review and activation should not be underestimated.

6. Implement the plan and maintain communications

Putting the plan of action in place is only the start of the resolution; it is important to provide regular review and updates. Even if there is no update to give, it is still crucial to keep everyone involved up to date until the event has been handled, so that no party is left wondering.

From theory to reality

Closing formalities found wanting

Frequently last minute problems arise because something has been overlooked. In our field of work this tends to be the formal customs export of the aircraft not having been put in place: whether this has been overlooked or it has been assumed to be managed by the buyer or the seller. This obviously impacts the timeline. In such scenarios contacting your specialist trusted advisors to assist and advise on the options available to resolving the issue is key. Communication is also required to explain if there is going to be a delay to all parties and keep everyone well informed.

The out of the blue scenarios

Unlike the overlooked scenario, sometimes an event out of the control of all parties happens ‘out of the blue’ often causing an unexpected time delay. For example, a power outrage in Oklahoma City or adverse weather conditions in the location of original documents.

Usually these sorts of unexpected issues will only cause a short delay but in each of these cases the core team will need to identify how the immediate time delay will impact the closing mechanics and any knock on effects. Understanding the movement in timescales and informing the parties that a short but unstoppable delay is occurring completely out of the hands of those involved is again essential.

Notifying everyone will lead to multiple elements to consider. For example if original documents are delayed from being sent due to weather, can copies be used until you can send the originals? Alternatively, if the aircraft lien checks and opinions cannot be issued in the original time frame, what other options are available to the parties?

Unforeseen financial issues: a third party becomes insolvent

On occasion you may find yourself involved in a situation because of your skill set; the crisis team have contacted you for time critical assistance with their unexpected event. When this happens you are playing catch up with core team, identifying the information you will need to help and presenting options and issues that may not have previously been considered.

This happened to the Martyn Fiddler Aviation team when a financier asked us to rapidly assist with an insolvency situation and take over the management and control of a group of companies.

We had to assimilate a lot of information in a short period of time; the business of the companies, their assets and contractual commitments. We had to form a team of accountants, administrators and advisors to consider what actions and information was required. Then we moved to prioritising. With regards to timescales, we didn’t move anything that was already set in place, rather it was trying to catch up with a moving train.

Customs: ramp checks

Unexpected issues quite often crop up from aircraft ramp checks. If a ramp check leads you into customs problems you need to ensure the crew understand what allegations are being made and what their rights are.

The easiest way to help prevent such issues occurring or to stop allegations escalating is to ensure you always carry the correct documentation on board in anticipation of such situations. However, if you come into difficulty you will need to contact your trusted advisors to get the support you need.

For example you may need to outsource advise from a particular jurisdiction and your team (or their Rolodex) will be able to do that. A translator may also be required to ensure that terminology doesn’t get misconstrued or that the documents you need to provide are not misunderstood.

Aircraft grounded and taxes imposed

It is not just in the European area that customs issues arise. An aircraft may frequently fly in to another customs territory without complication and then suddenly, the next time, the aircraft is boarded and the crew are told that there is going to be a certain taxation levied.

If you are brought into a scenario at this point, it is important to remember where your limits lie and to call upon the relevant contacts in the industry to assist you. Once you have local experts assisting you can then start conversations to understand the perceived issue and what is needed to secure the aircraft.

In these situations time is of the essence, the longer the situation is left, the more the allegations start to solidify. This is why it is important to get local advisors onboard ASAP who can not only translate but understand the terminology and also benefit from having a cultural understanding of how the situation should be dealt with.

Politics and legal

Some unexpected events arise from global politics and sanctions are a prime example. These can cause serious problems; contractual payments may be suspended and assets frozen.

This will nearly always require additional, specialist advisors who really understand the sanction rules put in place, the politics behind it and the information that is required as well as any possible solutions. Timescales will likely be out of the hands of the team – it will rest with any court or government involved.

While it is possible that the situation could resolve itself, this is unlikely to be under the control of the parties involved. It will be therefore be important for the team to consider whether a transaction needs to be suspended temporarily or indefinitely. For example, if sanctions prevent a party from continuing a contract or making re-payments, an event of default is highly likely to occur. The parties will need to consider ending the contracts and remedies available to them.

Lines of communications will need to be established to make all relevant parties aware of the situation and discuss options for resolution if this is possible. Addressing issues early on is more likely to lead to a better outcome and will give all parties time to get legal and other advice needed.

Summary

• Experience shows that the unexpected happens all too regularly and while we cannot plan for such events we can prepare ourselves to manage them in the best way possible.
• To coordinate a positive outcome we have highlighted a simple checklist involving identifying the issues, looking at the timescales, getting your team together and identifying various options that flow from the primary crisis event and any ancillary issues that may arise.