Delta Air Lines is preparing to introduce its first Airbus A220-100 in January, a year after a US trade commission ruled that the aircraft did not compete with Boeing's 737 line.
The US International Trade Commission (ITC) found that the 737-700 and 737 Max 7 were "unsuitable for the mission profile" sought by Delta in 2016 when it ordered the A220, then known as the CSeries and rebranded this July. The decision was based on the simple fact that the A220-100 carried at least 16 fewer passengers than either 737 models.
Boeing, which filed the suit in early 2017, had claimed that discounts on the CSeries provided by Bombardier to Delta amounted to dumping at below-cost in the US market. The airframer did not appeal the ruling.
Atlanta-based Delta is preparing to take delivery of its first A220 in the coming weeks, and will debut it on flights from New York LaGuardia to both Boston and Dallas/Fort Worth on 31 January 2019.
Both the delivery and initial service plan, however, differ from Bombardier and Delta's sworn testimony to the ITC in 2017.
Rob Dewar, then vice-president of the CSeries programme at Bombardier, told the commission that year that aircraft assembled at the airframer's Mirabel, Quebec, plant were "not going to go to US customers, that's clear". Bombardier was in early discussions with Airbus to build a second final assembly line in Mobile, Alabama, at the time.
In addition, Delta senior vice-president of supply chain management and fleet strategy Greg May told the commission that, under their purchase agreement the airline would "be required to pay Bombardier additional payments" if they deployed the CSeries on routes averaging more than 1,852km (1,000 nautical miles).
Neither Bombardier nor Delta have held to their statements to the commission. Delta will take its first A220 (MSN 50020) from Mirabel before the end of the year, and one of its initial routes, New York-Dallas/Fort Worth, will exceed 1,852km by 383km - or nearly an added LaGuardia-Boston flight.
Dewar's comments appear immediately questionable if the proposed tariffs were not implemented. At the time, Bombardier had just one assembly line, its Mirabel facility, and Delta executives spoke only of delaying deliveries until the proposed Mobile line opened if tariffs were levied.
Speaking shortly after the ITC issued its report in February, Bombardier chief executive Alain Bellemare said the report gave the airframer "flexibility to ship the aircraft from… Mirabel to Delta".
While Dewar's comments on not delivering any CSeries assembled in Canada to US customers was the likely scenario if the ITC levied tariffs on the aircraft, Bellemare's rapid about-face on the topic suggests that Mirabel deliveries were never completely off the table for either Bombardier or Delta.
"Delta is not facing any obligation for payment of any kind to the manufacturer for routes flown beyond any mileage threshold on the A220," the airline says when asked today if it faces a penalty for flying the aircraft further than 1,852km.
May's comments to the ITC were accurate at the time, adds Delta, declining to comment further.
This suggests a revision to the purchase agreement between Bombardier and Delta since May 2017, something that could have occurred when Airbus took a 50.01% stake in the CSeries programme in July.
Bombardier and Delta were in discussions over changing at least the delivery schedule of the aircraft in the purchase agreement as early as February, based on comments at the time. The carrier had expected 15 A220s in 2018 prior to the ITC complaint.
Airbus says it does not comment on "contractual, commercial discussions or arrangements with customers", and Bombardier declines to comment on the hearings.
Statements to the ITC are made under oath making false testimony a potential criminal offense. However, few such cases are pursued as the commission must refer them to the US Department of Justice to investigate before any charges can be brought.
"From a practical perspective, there's not the means to chase these things," a lawyer active in ITC cases tells FlightGlobal.
The crux of Boeing's ITC complaint against Bombardier were $4.5 billion in government subsidies that it alleged Bombardier had received for the CSeries programme. A similar case brought by Brazilian airframer Embraer against Bombardier is pending at the World Trade Organisation (WTO).
Delta is the North American launch operator of the A220, with firm orders for 75 A220-100s. Air Canada is scheduled to introduce the aircraft in 2019 and JetBlue Airways in 2020.
Updated to reflect May's comments in nautical miles, not statute miles.