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					                                                                                          Cat File No. W-0098-10

                                      CIVIL AVIATION TRIBUNAL

BETWEEN:

                                         Alta Flights (Charters) Ltd.

                                                          - and -

                                             Minister of Transport

C.R.C., c. 2, ss. 210(1)(a), 826(1)

Certificate of airworthiness – Journey Log Entries

It was alleged that the aircraft was flown on 11 separate occasions when both engines had exceeded
the mandatory engine overhaul. The operating certificate of the company was suspended for 14
days. The pilot failed to maintain a journey log for 23 separate flights involving four different
aircraft. The operating certificate of the company was suspended for 14 days.

On review, the Tribunal was satisfied that the aircraft made the flights in question and that no
entries were made for these flights. As for the count involving s. 210, the aircraft was l.54 hours
overdue for its 50-hour inspection, however, with a leeway of 10% or 5 flying hours under the
Progressive Maintenance Schedule, the aircraft is still within limits and two counts were
dismissed. Four counts were withdrawn by the Minister and 29 counts were confirmed.



                         REVIEW DETERMINATION                                      Rushford



February 26, 1990
Calgary, Alberta

Counts 6, 24, 25 and 27 were withdrawn by Transport.                The Applicant's operating certificate was suspended
 Counts 26 and 33(a) are dismissed. Counts 1 to 5, 7 to             from September 27, 1989 to October 10, 1989 for 23
23, 28, 29, 30, 31, 32, 33(b), 34(a) and 34(b) have                 alleged contraventions of Section 826(1) of the Air
been proven.                                                        Regulations.

This Hearing will be reconvened at Calgary, Alberta to              The Applicant's operating certificate was further
speak to penalty at a time and place to be fixed by the             suspended from the 11th day of October, 1989 to the
Tribunal.                                                           24th day of October, 1989 for 11 alleged
 2                               Alta Flights (Charters) Ltd. v. Minister of Transport


contraventions of section 210(a)(a) of the Air               introduced through Gordon Lowe, the Manager of Air
Regulations.                                                 Traffic control at Calgary. The Edmonton records
                                                             were introduced through Miles McCulloch, the
The suspensions were stayed pending this hearing.            Manager of the Edmonton Control Tower.

Particulars of the alleged breaches of Section 826(1) of     The procedure at all of the airports is basically the
the Air Regulations are set out in Counts 1 to 23 of the     same. All aircraft movements are entered into a
Notice of Suspension and involving failing to maintain       computer and the records introduced were extracted
a journey log for 23 separate flights involving four         from a computer. The evidence is that the system is
different aircraft C-FAFC, C-FMBG, C-GULQ and                extremely accurate but there is a possibility of error in
C-GRAV.                                                      identifying a particular aircraft. The system employs
                                                             checks and balances to pick up errors and the witness,
Section 826(1) of the Air Regulations reads as follows:      Jim Kaduhr, refers to mistaken identities as "extremely
                                                             rare". The witness, Gordon Lowe, gives the error rate
     “826. (1) Every owner of an aircraft, other than        as "1 out of 1200". The witness, Miles McCulloch,
     an ultra-light aeroplane, registered under these        uses the expression "possible but not very likely".
     Regulations shall maintain for that aircraft an
     aircraft journey log and an aircraft technical log.”    Counsel for the Applicant objected to the introduction
                                                             of this evidence on the ground that it was hearsay in
Particulars of the alleged breaches of Section               that the witness in each case did not compile the
210(1)(a) of the Air Regulations are set out in Counts       information himself but caused it to be extracted from
24 to 34 of the Notice of Suspension and involve flying      records. The essence of the hearsay rule is that if a
an aircraft when conditions upon which the Certificate       party wishes to prove a fact, a witness should be called
of Airworthiness was issued were not complied with in        who can testify directly about that fact rather than a
that the aircraft was flown for greater than 50 airframe     witness who can only relate second hand information.
hours between the 50 hour inspection and the 100 hour         Proceedings before the Tribunal, however, are dealt
inspection. In addition, Counts 33 and 34 allege that        with as expeditiously and informally as the
the aircraft was flown when both engines had exceeded        circumstances and considerations of fairness permit.
the mandatory engine overhaul required at 1800               The nature of this evidence does not demand direct
airframe hours. Each of Counts 24 to 34 set out              personal knowledge of the event. To require Transport
particulars of the flight involved.                          to call the person who identified the aircraft and made
                                                             the computer entry would be more trouble and
     “210. (1) No person shall fly or attempt to fly an      expensive than it is worth unless there was a serious
           aircraft, other than a hang glider or an
                                                             question as to the accuracy of the Daily Air Traffic
           ultra-light aeroplane, unless there is in
           force in respect of that aircraft.
                                                             Records. I have given careful consideration to
                                                             counsels objection, however, taking into account the
           (a)     a certificate of airworthiness            relevance of the records and the potential for
                   issued under this Part or under           unreliability and balancing these considerations in
                   the laws of the country in which          relation to fairness to the parties, I have admitted the
                   the aircraft is registered.”              Daily Air Traffic Records and have given considerable
                                                             weight to them in arriving at my decision.
Counts 6, 24, 25 and 27 were withdrawn by Transport.
                                                             Transport also introduced in evidence "Transport
Transport introduced into evidence the Daily Air             Canada Daily Air Traffic Record - Itinerant
Traffic Records for Vancouver International, Calgary         Movements" obtained from Statistics Canada. These
International and Edmonton Municipal.           The          records corroborate the evidence contained in "The
Vancouver records were introduced through Jim                Daily Air Traffic Records" from Vancouver, Calgary
Kaduhr, an acting unit operations specialist at the          and Edmonton.
Vancouver Control Tower. The Calgary records were
                         Alta Flights (Charters) Ltd. v. Minister of Transport                                3


Transport also introduced Mastercard fuel slip for           the entry on page 2000037 reading 05/03/89 should
some of the flights in question which further confirms       read 05/04/89.
that in those instances, the aircraft in question made the
alleged flight.                                              Count 26:

I accepted the Statistics Canada records and                 Exhibit M17, the Journey Log for C-FAFC, shows that
Mastercard fuel slip in evidence for same reasons I          the total Airframe hours between January 27, 1989 and
accepted the Daily Air Traffic Records from                  the last flight on February 28, 1989 is 44.9 hours.
Vancouver, Calgary and Edmonton.                             Counts 2, 3 and 4 however allege three unlogged
                                                             flights, one on January 27, 1989, one on January 30,
I am satisfied that the Counts 1 to 5 inclusive and 7 to     1989 and one on February 1, 1989. I have already
23 inclusive, that the aircraft in question made the         found that those flights were in fact made and that the
flight referred to in each of those Counts. I must now       hours were not logged.
determine whether the Applicant failed to maintain an
Aircraft Journey Log for the flight question.                Exhibit M2 shows that C-FAFC left Vancouver on
                                                             January 30, 1989 at 1751 and Exhibit M3 shows that
In this regard Transport called Peggy Plonka, the            C-FAFC arrived in Calgary at 2023. The unlogged
Enforcement Specialist, who conducted this                   time in relation to this flight is 2.32 hours.
investigation and seized the Journey Logs which were
entered in evidence. I have examined the Journey             Exhibit M3 shows that C-FAFC left Calgary on
Logs and satisfied that for Counts 1 to 5 inclusive and      January 27, 1989 at 0040 and Exhibit M2 shows that
Counts 7 to 23 inclusive no entries were in fact made in     C-FAFC arrived at Vancouver at 0247. The unlogged
the Journey Logs for the flights in question as required     time for this flight is therefore 2.07 hours.
by Section 826(1) of the Air Regulations.
                                                             The logged and unlogged hours insofar as Count 26 is
I now turn to Count 26 and Counts 28 to 34 inclusive,        concerned is therefore 51.54 hours.
all of which allege a breach of Section 210(1)(a) of the
Air Regulations. I am satisfied from the evidence                     Logged                     44.90
which I have referred to in relation to the allegations
under Section 826(1) that the flights referred to in                  Count 3 (unlogged)          2.07
Count 26 and Counts 28 to 34 inclusive were in fact                   Count 4 (unlogged)          2.32
made. All of the flights involve the same aircraft, a                 Count 4 (unlogged)          2.25
Piper Seneca C-FAFC. This aircraft was being                          TOTAL                      51.54
maintained under a Progressive Maintenance Schedule
which allows a leeway of 10% or a maximum of 5               After a fresh inspection on January 27, 1989, Exhibit
flying hours between inspections (Exhibit D2). If,           M17 starts at 1692.2 Airframe hours. The next
however, the leeway is utilized on one inspection, the       inspection is due therefore at 1692.2 hours plus 50
next inspection is due that much sooner.              In     hours or 1742.2 hours. If the total logged and
determining Counts 26 and 28 to 34 inclusive, the fact       unlogged hours between February 27 and February 28,
that this aircraft was on a Progressive Maintenance          1989 are added, the total Airframe hours on C-FAFC
Schedule must be taken into account.                         prior to the February 28, 1989 flight is 1692.20 plus
                                                             51.54 or 1743.74 Airframe hours. The aircraft is 1.54
The Journey Log for C-FAFC was entered as Exhibits           hours overdue for its 50-hour inspection, however,
M16 and M17 and the Transport Presenting Officer             with a leeway of 10% or 5 flying hours under the
and Counsel for the Applicant agreed that each entry in      Progressive Maintenance Schedule, the aircraft is still
Exhibits M16 and M17 correctly reflect the                   within limits. The next inspection is, however, due
information contained in the entry. There was also an        1.54 hours sooner. Count 26 is therefore dismissed.
admission that the entry on page 2000036 of Exhibit
M16 reading 04/03/89 should read 04/04/89 and that           Count 28:
 4                            Alta Flights (Charters) Ltd. v. Minister of Transport


This count involves a flight by C-FAFC on March 8,         taken into account, the hours overdue are even greater.
1989. Exhibit M18, which is the Technical Log, has an       I conclude, therefore, that Count 29 has been proven.
entry dated January 27, 1989 certifying that a 50-hour
inspection has been done at 1692.2 hours. The next         Count 30:
50-hour inspection would therefore be due at 1742.2
hours. If you refer to the Journey Log however (M17),      This Count involves a flight on March 18, 1989
there is an entry for January 27, 1989 which shows the     between Calgary and Edmonton. The Journey Log
next 100 hour check is due at 1745.2 hours. The total      (M17) shows the above flight and records 1 hour. At
logged Airframe time from January 27, 1989 to the last     this stage the aircraft is 13.6 hours overdue for its
flight on March 8, 1989 is 48.9 hours. Exhibit M37,        100-hour inspection.
however, shows a total of 6 unlogged hours. I
therefore conclude that the total Airframe hours logged             Logged hours                 48.9
and unlogged for C-FAFC at the conclusion the flight                Unlogged hours
on March 8, 1989 is 54.9 hours.                                     (Counts 28 and 29)           12.0
                                                                    Flight - March 18,            1.0
Logged hours               48.90                                          1989
        Unlogged            6.00                                    TOTAL                        61.9
        TOTAL              54.90
                                                           I conclude, therefore, that Count 30 has been proven.
Using the Progressive Maintenance Schedule, there
must be added to the logged hours of 48.90, the leeway     Count 31:
used in Count 26. The starting point for Count 28 is
therefore 48.90 plus 1.54 or 50.44 hours and if the        This Count involves a flight on March 19, 1989 near
unlogged 6 hours are added thereto, the total hours are    Edmonton, Alberta. The Journey Log (M17) shows
56.44 which is over the leeway allowed under the           the above flight and records 1.7 hours. At this stage
Progressive Maintenance Schedule. Count 28 has             the aircraft is 13.6 hours overdue for its 100-hour
therefore been proven.                                     inspection.

Count 29:                                                  Logged hours                49.9
                                                           Unlogged hours
This count involves a flight by C-FAFC on March 9,         (Counts 28 and 29)          12.0
1989. The total logged Airframe hours at the               Flight - March
commencement of this flight was 48.9 hours plus the        19, 1989                    1.7
6 unlogged hours referred to in Count 28 for a total of
54.90 hours. The evidence establishes that C-FAFC          TOTAL                       63.6
was in Weyburn, Saskatchewan on March 7, 1989.
Exhibit M28 is a Mastercard fuel slip from Hudson          I conclude, therefore, that Count 31 has been proven.
General Flight Services at Edmonton Municipal (M26)
shows the aircraft back in Edmonton with a notation        Count 32:
"Flight ready Estevan".
                                                           This Count involves a flight on March 20, 1989 at
I accept the evidence of Peggy Plonka that a               Edmonton, Alberta. The Journey Log (M17) shows
reasonable time for the flight to Weyburn and return to    the above flight and records 1.0 hour. At this stage, the
Edmonton for the aircraft in question is 6 hours. On       aircraft is 14.6 overdue for its 100-hour inspection.
this basis the total logged and unlogged hours as far as
Count 29 is concerned is 60.9 hours which is 10.9          Logged hours                51.6
hours over the time when the 100-hours inspection was      Unlogged hours
required. If the Progressive Maintenance Schedule is       (Counts 28 and 29)          12.0
                                                           Flight - March
                        Alta Flights (Charters) Ltd. v. Minister of Transport                               5


20, 1989                   1.0                                     Unlogged hours                 4.0

TOTAL                      64.6                                    TOTAL                        1811.8

I conclude, therefore, that Count 31 has been proven.     At this stage, insofar as Count 33(a) is concerned, the
                                                          aircraft is 5 hours overdue for its 50-hour inspection.
Count 33(a):                                              5 hours is within the leeway of 10% or 5 flying hours
                                                          under the Progressive Maintenance Schedule. The
This Count involves a flight on April 23, 1986 between    aircraft is therefore still within limits. Count 33(a) is
Vancouver, British Columbia.         The Count also       therefore dismissed.
involves a separate allegation that both engines
exceeded the mandatory overhaul time which I will         Count 34(a):
deal with separately. Exhibit M18, which is the
Technical Log shows that on March 21, 1989 a              This Count involves a flight on April 24, 1989. This
100-hour check was done. The logged and unlogged          Count also involves a separate allegation that both
hours between January 27, 1989 and March 20, 1989         engines exceeded the mandatory overhaul time which
(Count 26 and Counts 28 to 32) is 64.6 hours. On          I will deal with separately.
January 27, 1989 the 50-hour inspection certificate for
the date (Exhibit M18) shows total time of 1692.2         The Journey Log (Exhibit M17) shows a flight on
hours. The actual hours to March 21, 1989 are             April 24, 1989 of .7 hours. At this stage the aircraft is
therefore 1756.8 hours.                                   5.7 hours overdue for its 50-hour inspection, however,
                                                          the inspection is actually due 5 hours sooner than
Exhibit M18 - January 27, 1989                            shown as a result of the 5-hour leeway referred to in
         (Total time)               1692.2                Count 33(a).
Total logged and unlogged hours
(January 27 to March 21, 1989                             Total Airframe Hours(Count 33)        1811.8
 Counts 26 and 28 to 32)            64.6                  Flight -
                                                          April 24, 1989     .                     7
           TOTAL                    1756.8
                                                          TOTAL                                 1812.5
Counsel for the Applicant and the Presenting Officer
agree that between March 22, 1989 and April 23, 1989      I conclude, therefore, that Count 34(a) has been
there were 51 logged hours. There were, however, 4        proven.
unlogged hours.
                                                          Counts 33(b) and 34(b):
           Count 8         1.0
           Count 9         1.0                            Both allegations allege a breach of Section 210(1)(a)
           Count 14        2.0                            in that the aircraft was flown when both engines
                                                          exceeded the mandatory engine overhaul at 1800
           TOTAL           4.0                            Airframe hours. I found that the total Airframe hours
                                                          in relation to Count 33(a) was 1811.8 and in relation to
The total Airframe time as of April 23, 1989 was          Count 33(b) was 1812.5. The engines are therefore
1811.8 hours.                                             over 1800 hours insofar as both Counts are concerned.

           March 21, 1989                                 Avco Lycoming Service letter (Exhibit M40) shows
            (total)                 1756.8                the time before overhaul (TBO) for the engines in
           Agreed hours                                   question at 1800 hours. The service letter does,
           logged between                                 however, provide:
           March 22 and April 23     51.0
 6                             Alta Flights (Charters) Ltd. v. Minister of Transport


     "The party responsible for maintaining the             In relation to Count 19, Mr. Robertson says the
     engine may continue beyond the hours stated,           Applicant wasn't leasing the aircraft but the
     unless otherwise limited by FAA regulations.           registration wasn't changed through an oversight.
     Furthermore, it is the obligation of the party
     responsible for maintaining the engine to decide
                                                            Counts 22 and 23 involved a promotional ski trip and
     if it should be operated beyond the recommended
                                                            as no revenue was generated, there were no booking
     number of hours. This decision should be based
     on knowledge of the engine and the conditions          invoices which could be cross referenced.
     under which it has been operated."
                                                            Counts 1, 5, 7, 15, 16, 20 and 21 (a total of 7 counts),
The evidence in this case is that when the engines were     Mr. Robertson says, slipped through their system. He
removed at 1787 logged hours, that they were in good        says they represent only about 20 hours out of a
shape and were running well. It would have been             probable 4000 hours flown and suggests that this is a
possible for the Chief Engineer, John Williams, to          reasonable margin of error.
extend the time based on the logged hours, however,
that was not done and the engines were, in fact, time       Mr. Robertson also suggests that someone holds a
expired when the flights referred to in Counts 33(b)        grudge against the Applicant and had sabotaged one of
took place. Counts 33(b) and 34(b) have therefore           the Applicant's aircraft. In addition, the Applicant was
been proven.                                                having problems with a former employer who had a
                                                            Piper Seneca with all letters so similar to C-FAFC that
Transport suggests that the Applicant's conduct in          Tower errors could occur in recording aircraft
failing to log flights was done deliberately for the        movements. In fact, I am left with the feeling that Mr.
purpose of extending the time between overhauls. The        Robertson may be suggesting that the former employer
result in Transport's view is that aviation safety has      may have used the call letters of the Applicant's Piper
been compromised.                                           Seneca. I do not find these suggestions plausible.

The Applicant suggests that at least part of the problem    Counsel argues that the Applicant took reasonable care
was the fault of others over which the Applicant had no     to avoid the contraventions and that section 8.5 of the
control. In those instances where others were not at        Aeronautics Act is a defence.
fault, the Applicant suggests that a defence of due
diligence applies.                                          Section 8.5 reads as follows:

David Robertson, the Applicant's Chief Operations                “8.5 No person shall found to have contravened
Officer suggests that Counts 2, 3 and 4 all took place           a provision of this Part or of any regulation or
                                                                 order made under this Part if the person exercised
on a weekend and resulted from an employee using the
                                                                 all due diligence to prevent the contravention.”
aircraft without permission.
                                                            Counsel directed my attention to Minister of Transport
Counts 8 to 14 inclusive, Mr. Robertson says,
                                                            and Donald R. Fonger, CAT File No. C-0064-02, DOT
happened while he and his wife (the President) were on
                                                            File No. 6504-P140586-007386 and to Regina v. City
vacation and that one Al Kroontie, who is the sole
                                                            of Sault Ste Marie which is referred to in the Fonger
shareholder of a company which owns 50% of the
                                                            case.
Applicant Company, may have flown the aircraft. Mr.
Kroontie testified that it is likely he flew the aircraft
                                                            I am also reminded of the comment of my colleague,
and might not have entered the log. There are,
                                                            Ed Jenson, in the initial hearing in La Ronge Aviation
however, no entries in Mr. Kroontie's Pilot Log since
                                                            Services Ltd. in which he alluded to the seriousness of
1988. In relation to Count 18, Mr. Robertson thinks
                                                            suspending an Operating Certificate.
maintenance may have made a test flight.
                                                            Minister of Transport and Donald R. Fonger is a
                                                            correct statement of the law and I accept the principle
                         Alta Flights (Charters) Ltd. v. Minister of Transport                                 7


that section 8.5 provides an opportunity for an accused      such that the applicant did not take all reasonable care
to avoid liability if that person can satisfy the Tribunal   that a reasonable man would have taken in the
that he exercised due diligence to prevent the               circumstances. Section 8.5 is therefore not a defence
commission of the offence.                                   in this case.

In this case I must examine the evidence and determine       At the conclusion of argument, I advised the
whether the Applicant, in this particular case, took all     Presenting Officer and Counsel that if they wished to
reasonable care that a reasonable man would have             speak to penalty in the event I found for Transport,
taken in the circumstances.                                  then I would listen to argument but that I would not
                                                             allow evidence of previous convictions, if any, to be
The evidence of the witnesses called by the Applicant        introduced. To do so at that stage might influence my
in this regard is that the Applicant employs a Safety        decision and would be unfair to the Applicant. Various
Officer as a go between line pilots and management.          methods were explored to speak to penalty in the event
The Safety Officer also lectures on safety related           I found for the Minister including a conference call and
topics. As matter of policy, new pilots take orientation     written argument.
rides on flights before resuming regular duties. All
pilots are directed to log each flight however short.        Counsel for the Applicant, however, preferred verbal
The logs are cross checked with the Company booking          representation and in view of the seriousness of the
sheets to ensure that all bookings have been logged. It      suspension to the Applicant, I agree that expediency
is the responsibility of the pilot-in-command to             should not stand in the way.
complete the Journey Log. In addition, the Applicant's
evidence is that films and safety letters are used along     This hearing will, therefore, be reconvened at Calgary,
with recommendations of their companies in relation          Alberta, to speak to penalty at a time and place to be
to accidents. New pilots receive ground school               fixed by the Tribunal. Both parties will be notified of
instruction on company aircraft and instruction on           the time and place in writing.
normal and abnormal emergency procedures. When a
new pilot is ready, he or she then does a proficiency
test with a DOT Inspector. The company has
sponsored a staff contest for accurate log book entries.

The contraventions in this case occurred between
October 30, 1988 and April 24, 1989, a period of less
than 6 months. Four of the Counts were withdrawn and
Counts 26 and 33(a) have been dismissed. This still
leaves 29 Counts plus 33(b) and 34(b) or a total of 31
in which I have found that the contraventions have
been proven. This amounts to approximately 5
violations per month over the period involved.

It seems to me that if the Applicant's system had been
working, the contraventions, at least not so many of
them, would not have occurred.

There is no evidence before me that the Applicant
deliberately failed to log flights with the purpose of
extending the time between overhauls and it would be
dangerous to make such a finding on the evidence
presented. I do, however, find that the number of
contraventions involved over a 6 month period are

				
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