Although this declaration is made pursuant to the Convention, the right of arrest/detention referenced in the declaration is given by thelaw of Country A.
Hence, as with a declarationmade pursuant to Article 39(1)(a), the conflict of laws rules of a different forum state will determine the extent to which the NCRI may be recognized.
us take the example that an airport authority of Country A attempts to detain three aircraft, designated as Aircraft 1, Aircraft 2, and Aircraft 3, operated by a lessee operator based on unpaid fees due by the operator to such airport authority
for Aircraft 1 in the amount of $50,000 and for aircraft 2 in the amount of $50,000. The airport authority asserts a right of detention based uponthe Article 39(1)(b) declaration
The question is whether the lessor’s right to repossess all three aircraft in the event of a default on rental payments for all three aircraft is superior to that of the airport authority’s purported NCRI based on the unpaid fees.
In this example, for the airport authority to seek detention of all three Aircraft through an action in the courts of Country A, there are three essential points underlying the analysis.
First, the declaration itself is not the actual right of detention.120 Second, the Convention does not create a treaty-based detention right but recognizes Country A’s declared detention right in Country A, which will be conditioned according to Country A’s actual laws
Third,the declaration addressing the right to detain another object’ (which would provide the authority to detain an aircraft other than that on which the operator owes the aircraft fees) must have become effective before the lessor’s registration of its interest
Accordingly, provided that the declaration was effective prior to the lessor’s registration of the international interest, and provided that the law of the declaring State permits the exercise of a lien on equipment other than that on which the fee is
owed, then the aircraft authority does have the right to detain all three aircraft even though there are only fees due on two of the aircraft.