Decisions

CAT File No. Q-2265-60
MoT File No. 5802-166736

CIVIL AVIATION TRIBUNAL

BETWEEN:

Roger Bernardin, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)


Review Determination
Pierre J. Beauchamp


Decision: February 25, 2002

TRANSLATION

I confirm the Minister's decision to suspend the pilot proficiency check of Captain Bernardin.

A review hearing on the above matter was held November 22, 2001, at 9:00 hours at the courthouse in Montréal, Quebec.

BACKGROUND

Mr. Roger Bernardin is a Boeing 757 pilot.

On April 2, 2001, he underwent a proficiency check in a Boeing 757 flight simulator in Minneapolis, St. Paul, for renewal of his pilot proficiency.[1]

The exam was administered by Captain Lewis, an approved check pilot (ACP) who himself underwent, on the same occasion, a proficiency check, administered by Mr. Wilf Bradbury, a Transport Canada inspector.

Although most of the events presented in the exam script were executed satisfactorily, Captain Bernardin had difficulty controlling the aeroplane during a pull-up following a missed approach, with a fire/engine failure occurring after the go-around.

The check pilot Lewis rated this sequence unsatisfactory and after the landing that followed, terminated the exam.

This assessment of "failed" resulted in the suspension of Captain Bernardin's PPC, who requested a review of that assessment.

THE EVIDENCE

The Minister's representative, Inspector Richard Gagnon, called three witnesses: Mr. Lewis, the ACP, who administered the proficiency check, Mr. Collin Cuthbert, the first officer, who occupied the right-hand seat during the flight and acted as the PNF[2] in performing his duties as first officer, and the aforementioned Inspector Bradbury.

Captain Bernardin also testified and presented his version of the events. In the past, he had served as ACP for his company on Airbus 300 aircraft and at the time of the flight check was an ACP with authority B on B-757 aircraft; he has also been an inspector with Transport Canada.

The evidence is clear and incontrovertible that at the time of the said flight check, until the pull-up of the aircraft with an engine failure and fire, Captain Bernardin had performed without a hitch. The flight check was administered according to one of the two scripts[3] used at that time by ACPs to assess the proficiency of their pilots. These scripts guide the check pilot in the sequence of events programmed to fulfil the requirements and manoeuvres to be assessed for renewal of a PPC in accordance with the regulations.

According to the script, after an ILS CAT II approach on runway 25L at LAX, a pull-up was executed because the visibility conditions required for landing were not met. The approach and pull-up were executed with the aircraft's autopilot engaged.

It is not clear from the evidence at precisely what point the engine failure, i.e., the drop in engine thrust, occurred.

Mr. Lewis stated that during the pull-up[4] he introduced the malfunction, i.e., a fire with simultaneous engine loss. Mr. Bradbury specified that the malfunction was introduced during the pull-up procedure but before TOCA.[5] Mr. Bernardin testified that it was at the initial go-around that the fire indicator appeared, that there was no failure at that point, but very soon after there was a drop in engine thrust.

Mr. Cuthbert testified that the fire/failure occurred after TOCA, at an altitude of 400 feet above the ground or 1,000 feet according to his account,[6] or an altitude of about 1,700 feet, and after the wheels and flaps had been retracted.

However, the evidence regarding the control problems covers mainly two aspects: firstly, the roll and runway heading deviations, and secondly, the loss of airspeed.

Regarding control of the direction of the aircraft during the engine failure, the witnesses all agreed that the aircraft had banked up to 45° in both directions; and First Officer Cuthbert added that the aircraft heading deviated from the runway heading as much as 110°, and then after returning to the runway heading of 250° there was a second excursion, this time 60° to the right; only then was the aeroplane finally stabilized on a heading that deviated 30° from the runway heading.

Regarding airspeed, Lewis, Cuthbert and Bradbury said they saw the airspeed drop some 20 knots (30 kts according to Cuthbert) below the required reference speed, that the F/S indicator[7] was at the bottom of the scale and flashing, and that "ALPHA" mode was displayed on the EADI.[8]

Mr. Bernardin testified in this regard that the airspeed had indeed dropped during these heading deviations and rolls, but had stabilized not at 20 knots below the approach reference speed (VREF + 5 kts) but at a speed greater than the approach speed, although he also stated that when the first officer called the "speed" he was in manual control and had difficulty getting the aeroplane on course, and noted that the indicated airspeed had dropped to display ALPHA mode.

Moreover, Lewis, Cuthbert and Bernardin all agreed that engine failure occurred during the go-around, when engine thrust had automatically been reduced to maintain a climb rate of 2,000 feet per minute (on two engines).

In this regard, Messrs. Lewis, Cuthbert and even Bradbury said that the standard operating procedures for the B-757 do not call for the PNF to adjust the throttle controls in such a case (less than maximum thrust/engine failure) and that it was up to the PF (pilot flying) to look after the throttle controls in this case, and that Mr. Bernardin never adjusted the controls or asked that this be done during this critical period of the flight.

Specifically, First Officer Cuthbert stated that he never adjusted the controls after the go-around was initiated, but made several calls about the dropping airspeed and the high amount of bank, and all the witnesses confirm this.

Lewis and Cuthbert testified, finally, that this period of difficulty, i.e., the problem of lateral control and loss of airspeed, lasted a period of three minutes.

Mr. Bernardin explained that when engine failure was indicated (with an engine fire indicator) he was on autopilot, and that when he noticed the high amount of bank he disengaged the autopilot because he thought the system could not manage to control the aeroplane. He admitted that he then found himself in manual control and having difficulty controlling the trajectory of the aeroplane. He also noticed that the airspeed had dropped and the EADI indicated ALPHA, and at that point, with the airspeed down to ALPHA, he focussed on two objectives: not to lose altitude, and to monitor the F/D[9] indications so as not to drop below ALPHA speed.

He believed this had all happened in less than three minutes and he even re-engaged the autopilot at some point, and then had to disengage it again to properly stabilize the aeroplane's attitude.

Finally, regarding the drop in airspeed reported by Lewis and Cuthbert and even Bradbury, he thought they were likely all mistaken when they testified that it had dropped to 20 kts below the reference speed, which would normally be VREF/30 + 5 kts and would be shown on the airspeed index marker.

In fact, referring to the operations manual of the B-757,[10] Mr. Bernardin testified that what the witnesses had observed was not the approach and go-around speed (VREF/30 + 5) initially displayed on the airspeed index marker, but the new speed shown by the index marker minus 20 knots (or, in the case of Cuthbert, minus 30 knots) because the index marker had reset during the go-around. In fact, he believed he had initiated it at a speed greater than the approach speed initially commanded (that is, during the category II approach), and in these circumstances the index marker had reset in reference to this new speed.

In support of this, he cited the following:

When a go-around is initiated, the commanded speed is the MCP IAS/MACH window or current airspeed, whichever is higher. If the airspeed increases and remains above the initial target airspeed for five seconds, target airspeed resets to current airspeed to a maximum of the IAS/MACH window speed plus 25 knots.[11]

ARGUMENT

The Minister's representative, Inspector Gagnon, argued that it had been adequately shown that the ACP Lewis was justified in giving Captain Bernardin an assessment of "failed" for this renewal of his PPC.

In his opinion, Captain Bernardin failed to operate the aeroplane as required and had deviated from the established standards significantly, justifying the assessment of "failed" given by Mr. Lewis.

The fact that the flight check had not been terminated immediately when the deviations were noted on go-around is not significant, as the ACP has some discretion in this regard.

Mr. Bernardin argued that the exam should not have resulted in an assessment of "failed" for the following reasons:

(1) The co-pilot had failed in his duty to regulate the engine thrust; in circumstances such as those encountered, the input of two pilots is necessary to ensure the safe operation of the aeroplane. The ACP should therefore have taken into consideration that the type of engine used during this assessment in a flight simulator differed substantially from those ACPs normally use on their aeroplanes, and this explains why he did not immediately notice that he did not have the required thrust after engine failure.

(2) The assessment given was therefore too severe in the circumstances. In fact, he feels an assessment of "failed" or a rating of "Unsatisfactory" should be given only when, pursuant to section 10.2.3 of the Approved Check Pilot Manual, it is impossible to give a rating of "Satisfactory" or "Satisfactory with Briefing."

This was not the case. His deviations from the standard (speed, 4) were only momentary variations, which are permitted in the circumstances (section 10.3.2).[12]

Finally, although the speed had dropped to below the normal value, the aeroplane was not jeopardized, because there was still a manoeuvre margin.

THE LAW

Subsection 7.1(1) of the Aeronautics Act:

7.1 (1) Where the Minister decides
(a) to suspend, cancel or refuse to renew a Canadian aviation document on medical grounds,
(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or
(c) to suspend or cancel a Canadian aviation document because the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the holder of the Canadian aviation document or of any principal of the holder, as defined in regulations made under subsection 6.71(2), warrant it,
the Minister shall, by personal service or by registered mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister's decision.

DISCUSSION

The issue to be determined is whether, on April 2, 2001, during a flight check in a simulator for renewal of his PPC, Captain Bernardin failed to meet the standards stipulated in the Approved Check Pilot Manual.

It is acknowledged that the burden of proof rests with the Minister, who must establish, on the preponderance of the evidence, that the assessment of "failed" given Captain Bernardin was justified in the circumstances.

Chapters 9 and 10 of the Approved Check Pilot Manual cover the management of flight check assessments[13] and specify the assessment standards.[14]

It is appropriate to recall in this regard the first paragraph of the instructions to the ACP:

It is impossible to define all instances when a particular exercise should be rated "S", "SB" or "U". However, it is possible to examine each sequence of a flight check and test its validity against the definition for each rating.[15]

It is recalled also that ACPs must use the assessment standards located in the next chapter[16] when determinating the rating to be awarded for specific flight check sequences and are asked to "use knowledge and experience in conjunction with the rating definitions to arrive at their assessments."[17]

The above-mentioned Chapter 10 covers the said assessment standards, and without excluding those I do not mention below, the following rules are relevant to our discussion and bear mentioning:

[...]

10.1.2 The flight check will be conducted in accordance with

(a) the standards described in this chapter;
[...]
(d) Operator documents such as the COM, AOM and SOPs.

[...]

10.2 Rating Scale

Satisfactory (S)

10.2.1 A sequence shall be rated Satisfactory if:

(a) it contains minor errors only;
(b) airspeed and altitude control are acceptable for prevailing conditions; and
(c) aircraft handling and knowledge are acceptable and safe considering the experience of the candidate.

Satisfactory with Briefing (SB)

10.2.2 A sequence shall be rated Satisfactory with Briefing when:

[...]
(b) the candidate had a brief excursion from published tolerances but initiated corrective action;
(c) a sequence deviates from standard procedures or practices but does not create a more hazardous situation and is repeated satisfactorily or clarified by the candidate during debriefing;
[...]
(e) the candidate experienced some difficulty or required slight prompting from the other crew member to satisfactorily accomplish a task.

[...]

Unsatisfactory (U)

10.2.4 If a sequence cannot be rated Satisfactory or Satisfactory with Briefing according to the preceding guidelines, it shall be rated Unsatisfactory.

10.2.5 A sequence shall also be rated Unsatisfactory if:

(a) it endangers the aircraft, passengers or crew;
[...]
(c) multiple errors are made in the completion of any one exercise;
(d) it violates an ATC clearance or altitude;
(e) the aim of the exercise is complete but there is a major deviation from standard procedures or practices or the safety of the aircraft was jeopardised;
(f) the candidate required continual prompting or help from the other crew member to complete a task;
(g) it exceeds aircraft limitations; or
[...]

10.3 Tolerances

10.3.1 The tolerances for instrument flight sequences must be respected by all ACPs. Each candidate must demonstrate aircraft control to maintain:

(a) assigned headings during normal flight within ± 10 degrees;
[...]
(f) airspeed during take-off and approach within + 10/ -5 knots.

10.3.2. These criteria assume no unusual circumstances or conditions and may require allowances for momentary variations. Such things as weather, turbulence, simulated malfunction and type of approach may modify the exact rating definition and tolerances to be applied during a particular sequence.[18]

In this context, was the assessment of "failed" given Captain Bernardin justified?

I recall in particular, from the established evidence, the following sequence of events:

The crew of the B-757 under Captain Bernardin's command made a Category II ILS approach on runway 25 left at Los Angeles. As the visibility requirement to allow a safe landing was not met, a go-around was initiated. During the ILS approach, the autopilot was engaged, and during the missed approach initiated by Captain Bernardin, by pushing the G/A auto-throttle, the ACP introduced an engine fire/failure.[19]

Up to that point, all other drills planned and carried out for renewal of the candidate's PPC had been satisfactory, although minimal errors were noted.

It was during the missed approach procedure with fire and engine failure that things deteriorated.

In fact, if we refer to the approach chart CAT II 25L LAX consulted at the hearing and to the extracts of standard operating procedures that were produced,[20] Captain Bernardin had to execute the go-around, control the trajectory of the aeroplane, despite the engine fire/failure, according to the missed approach path mentioned in the approach chart, namely:

Climb to 800 then climbing LEFT turn to 2000 via 190 Hdg & 210R LAX to CATLY INT/ 12.8 DME LAX.

while dealing with the engine fire/failure ("fire drill"), retracting the wheels and flaps at the appropriate time, and re-engaging the autopilot if it had been disengaged.

Captain Bernardin explained to us that during the engine fire/failure, the autopilot had not controlled the aeroplane and that when he noticed the amount of bank caused by the failure, which the autopilot was unable to control, he disengaged it, and that is when the tacking, off-course rolls, high amounts of bank and loss of airspeed occurred.

According to him, it was the inability of the autopilot to control the amount of bank and the trajectory on one engine, and the fact that the stabilized thrust on one engine was less than that commanded and required (task to be performed by the first officer) that caused the loss of control and drop in speed which he was unable to recover for a time.

In short, it was the autopilot and the first officer who failed the task, which explains the deviations from the standard. What of that?

It is well known that on B-757 aircraft, during a climb of this type, that is, following an ILS approach during which the three autopilots were engaged, that even during an engine fire/failure, the multiple autopilot system can control the course of an aeroplane normally, provided the three autopilots remain engaged, but that a single autopilot is not up to the task:

Note: If the autopilot systems are compensating for an asymmetric thrust condition when they revert to a single autopilot in CMD configuration, the rudder will return to the trimmed position unless the pilot exerts the rudder pedal force required to maintain the rudder position.[21]

During a go-around, the three autopilots remain engaged until the end of the so-called G/A period and especially, insofar as we are concerned here, when:

Above 400 feet radio altitude -

  • select a different roll or pitch mode; all autopilots, except first in CMD, disengage[22]

As the missed approach path stipulated for this runway requires a left turn at 800 feet, the aeroplane had to follow the runway course during the go-around, that is, a heading of 249°, to 800 feet, then turn left to a new heading of 190° and radial 210, climbing to an altitude of 2,000 feet.[23]

The ILS 25L approach which had been programmed to execute the above-mentioned approach contains these data, and in order for the autopilot system to follow these instructions it is simply a matter, after 400 feet, or when the speed has stabilized in the case of a go-around with engine failure, of engaging the LNav or electing to guide the trajectory of the aeroplane oneself by selecting "HDG."[24]

In a case such as we have here, the pilot must anticipate that at that point, two of the three autopilots will be disengaged as mentioned above, and he will have to assist the autopilot by using the rudder to control the aeroplane in this situation of asymmetric thrust and control the course of the aeroplane according to the missed approach path on the approach chart.

The pilot is not released from this responsibility unless he has obtained clearance from air traffic control and the course to be followed keeps him clear of any obstacles.

It is in evidence that with regard to direction, the aircraft banked as much as 45° on either side and that the deviation from the planned course varied greatly until it stabilized at 30°. Captain Bernardin does not deny this last assertion, although the deviations of 110° and 60° mentioned by the first officer are disputed.

Nevertheless, I am satisfied that, on the evidence, the assigned course was not followed with the degree of precision required by the above-mentioned standards, within a reasonable period of time, given the circumstances (fire-engine failure at the time of the go-around).

The tolerances mentioned in 10.3.1(a) of 10° from an assigned heading or the VOR track (10.3.1(b)) must be observed even in a case such as this. I understand that paragraph 10.3.2 states:

These criteria assume no unusual circumstances or conditions and may require allowances for momentary variations...[25]

The momentary variations allowed can in no way justify the deviations from the standard that are proven here.

Let us place the proven facts in an operational context.

It is well known that Los Angeles airport is one of the busiest airports in the United States.

It has been proven that it consists of two sets of parallel runways, 25L and R situated south of the terminal, and 24L and R situated north of the terminal. Each set of runways, and in particular 25L and R, are separated by only a few hundred metres.

As at all major airports, approaches and take-offs are conducted on the four runways simultaneously, the outer runways (24R and 25L) usually being reserved for landings, and the inner runways (24L and 25R) for take-offs; hence the need, unless first cleared to do otherwise, to follow precisely the approach and go-around procedure specified on the approach chart.

Airline pilots, to maintain their proficiency, must therefore be able to demonstrate control of their aeroplane even in difficult circumstances such as those of concern to us here; otherwise the safety of the aeroplane is jeopardized.

The assessment standards therefore allow for a momentary variation[26] in an unusual circumstance such as this, but the pilot must maintain control and bring the aeroplane back on course quickly; otherwise, the aeroplane's trajectory could take him across the runway centre line of the adjacent runway as here, or deviate from the course that protects the aeroplane from obstacles that may surround the airport. In fact, some airports (San Francisco (KSFO), Las Vegas (KLAS) and in Canada, Victoria (CYYJ), come immediately to mind) require a precise course along with a specific minimum rate of climb to avoid the mountains around these airports; hence the importance of precisely controlling the course of the aeroplane.

Moreover, the evidence has shown to my satisfaction, and Captain Bernardin has admitted, that the go-around speed also dropped at least 20 kts from what it was when the go-around was initiated at the time of the engine fire-failure and consequent rolls. It is clear and admitted that this loss of speed lasted more than a moment.

Captain Bernardin, referring to D-4, explained that during the missed approach, the airspeed index marker automatically reset at a speed greater than what it would normally show, since he had initiated his "G/A" at this (greater) speed, and that the airspeed therefore had not dropped below the approach reference speed. According to him, this drop in airspeed below the reference speed to which the witnesses refer is therefore in relation to this new reference now displayed on the airspeed index marker.

I do not agree with this interpretation of either the facts or the aircraft operations manual.

In fact, the operations manual does not say that the airspeed index marker will reset to display a new reference for the autopilot or flight director, but rather that the autopilot or flight director will take as a new reference or target airspeed an airspeed that has been maintained for more than five seconds. Nowhere does the manual say that this target airspeed will be displayed on the index marker and in the MCP IAS/MACH window, but only that it will be the speed commanded by the on-board computer.

The speed observed by Williams, Cuthbert and Bradbury was therefore in reference to the approach and G/A target airspeed, and the variation far exceeded the tolerance allowed (± 10 knots) for a long time, i.e., certainly longer than one minute and perhaps as long as three minutes (Lewis/Cuthbert).

It must be recalled that they all saw "ALPHA" displayed and that the F/S indicator was at the bottom of the scale, was flashing, and had changed colour. This change in colour appears only when the limit, in this case ALPHA, has been exceeded.

When the limit mode is displayed, the limit speed becomes the reference speed for the autothrottle and AFDS... The Fast/Slow pointer changes color to amber and the pointer flashes when a speed limit is exceeded.[27]

Finally, it has been established that ALPHA is the equivalent of 1.3 times the stall speed (1.3 Vs),[28] which means the aeroplane was close to stalling.

In the circumstances, I am satisfied that the Minister has proved that the manoeuvres observed and the deviations reported amply justified the assessment of "failed" which is being appealed.

In short, it is clear that the inability, during a go-around with a fire-engine failure, to control the attitude, speed and direction of the aircraft within a reasonable time, as has been established here, "endangers the aircraft, passengers or crew [and that although] the aim of the exercise [was] complete [there was] a major deviation from standard procedures or practices [...]."[29]

Finally, regarding the first officer's performance during the critical period of the go-around (go-around/engine failure), I think it is clear that he also failed to meet the required standard.

In this regard I fully agree with Mr. Bernardin's testimony, corroborated by the filed standard operating procedures (SOPs) of the B-757, notwithstanding the statements of the ACP Lewis and Mr. Cuthbert, that the task of the first officer (then PNF) was to ensure that the required go-around thrust was not only requested and selected, but also displayed, and if it was not, he was to correct this:

PNF: GO-AROUND THRUST SET

Ensure GA Thrust is set.[30] [emphasis added]

This mistake on his part aggravated an already delicate situation and certainly contributed to the difficulties reported.

We might recall that Chapter 9 of the Approved Check Pilot Manual regarding the management of the above-mentioned flight check assessments stipulates:

9.1.5 During a flight check on a multi-crew aircraft, the assessment(s) shall be conducted under a flight crew concept and not on an individual basis.
[...]

9.1.6 During a flight check, a flight sequence may involve duties and / or responsibilities for crewmembers other than the pilot flying (PF). Such a sequence that is rated as "unsatisfactory" for the PF may, due to inappropriate action on the part of other crewmembers (i.e., the pilot not flying [PNF]), be rated as "unsatisfactory" for the PNF also. In such a case, it is possible that an assessment of "failed" may be given to more than one crewmember involved in the same flight sequence.

But that is not my concern, since we are only concerned here with the flight test of Captain Bernardin.

The fact remains that Captain Bernardin, while he did not receive all the assistance required in the circumstances, did not ensure in a timely fashion that the first officer had indeed performed the tasks assigned him by the SOPs, and this contributed to his difficulties. In any event, I am satisfied that he was unable to maintain the aircraft attitude as required and to control the course of the aircraft with the precision required by the assessment standards.

For all these reasons, I confirm the Minister's decision to suspend the PPC of Captain Bernardin.

Pierre J. Beauchamp
Member
Civil Aviation Tribunal


[1] PPC: pilot proficiency check, or, in French, CCP: contrôle de la compétence du pilote.

[2] PNF: pilot not flying — pilot who is not at the controls.

[3] Exhibit M-6.

[4] Hereafter the term GO AROUND (G/A) is also used and indicates the overshoot and pull-up of the aircraft.

[5] TOCA: Take-off minimum obstacle clearance altitude.

[6] The TOCA specified on the approach and departure charts for Los Angeles airport, runway 25 Left, consulted at the hearing, is 750' MSL.

[7] F/S indicator: indicateur vitesse H/B.

[8] EADI: electronic attitude director indicator.

[9] F/D: flight director.

[10] D-4.

[11] Idem.

[12] M-5, section 10.3.2.

[13] D-11, Chapter 9.

[14] D-12, Chapter 10.

[15] D-11, paragraph 9.1.1.

[16] Id. see paragraph 9.1.3.

[17] Idem.

[18] D-12.

[19] Op. cit. note 3: B-757 recurrent simulator script #1 at pages 7 and 8.

[20] D-1: standard operating procedures, non normal procedures, single engine go-around, and D-3.

[21] D-5, footnote.

[22] D-5.

[23] Approach chart, page 9.

[24] D-1, pages 39 and 18.

[25] Op. cit. note 18.

[26] momentary: lasting only a moment. See the Canadian Oxford Dictionary, Oxford University Press, Toronto, 1998.

[27] D-7.

[28] D-6, page Autoflt – 6.

[29] D-12 Unsatisfactory 10.2.5 (a) and (e).

[30] D-1 and D-3.