Decisions

CAT File No. W-1966-33
MoT File No. SAP5504-P365094-40519

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Kerence Peter Pawluski, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s. 7.7, 7.9(5)(a)
Canadian Aviation Regulations, SOR/96-433, s. 602.01

Burden of Proof, Fuel Starvation, Negligent or Reckless Operation of an Aircraft, Negligence


Review Determination
E. David Dover


Decision: May 16, 2000

I dismiss the Minister's allegation and cancel the monetary penalty of $1,000.00 assessed against Kerence Peter Pawluski.

A Review Hearing on the above matter was held Monday, May 1, 2000 at 10:00 a.m. at the Federal Court of Canada, in Edmonton, Alberta.

The witnesses excepting the document holder, Dr. Pawluski, were excused from the room prior to the commencement of proceedings.

There were no pre-hearing conferences held between the parties.

BACKGROUND

On December 1, 1999, a monetary penalty of $1,000.00 was assessed against Dr. Pawluski, the Respondent, pursuant to section 7.7 of the Aeronautics Act by the Minister of Transport alleging that Dr. Pawluski had contravened the following provision:

Canadian Aviation Regulation 602.01 in that on or about the 2nd day of March 1999, at or near Edmonton, Alberta, you operated an aircraft identified as Cessna T210M, C-GNSC, in such a reckless or negligent manner as to endanger the life or property of any person, by conducting a flight without sufficient fuel.

On or about 0115Z a Cessna T210M registration C-GNSC departed Winnipeg International Airport with four passengers and one crew member for an IFR flight to Edmonton City Centre Airport. The routing was Winnipeg YWG, to Yorkton YQV, to Saskatoon YXE, to Edmonton City Centre YXD. At or about 0505Z the aircraft was observed to be established on final approach for runway 16 at the Edmonton City Centre with the engine sputtering and the aircraft descending. The aircraft landed in a field about four miles back from the threshold of runway 16 damaging the landing gear and the propeller. There were only minor injuries sustained by the five occupants.

THE LAW

Section 602.01 of the Canadian Aviation Regulations (CARs):

SUBPART 2—OPERATING AND FLIGHT RULES

Division I—General

Reckless or Negligent Operation of Aircraft

602.01 No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

OPENING STATEMENTS

Mr. McFarlane stated that it was his intention to call three witnesses and by their testimony prove that the aircraft, a Cessna T210M, Registration C-GNSC, had landed short of the runway at Edmonton City Centre because of fuel starvation.

Dr. Pawluski stated that he would call no witnesses and that he intended testifying on his own behalf.

FOR THE APPLICANT—the Minister of Transport

The case presenting officer Mr. R. J. McFarlane presented three witnesses.

Mr. Ian Murray

The witness was sworn. Mr. Murray testified that he had known Dr. Pawluski for a period of between eight and ten years. He testified that during that period he had been Dr. Pawluski's soccer coach.

Mr. Murray testified that he had previously flown from Edmonton City Centre to Winnipeg in the Cessna T210M, registration C-GNSC piloted by Dr. Pawluski and accompanied by three other passengers.

Mr. Murray stated that on the return trip they departed Winnipeg between 6:30 p.m. and 7:00 p.m. local time. The flight terminated in a field just short of the runway at Edmonton City Centre Airport between 12:30 a.m. and 1:00 a.m. local time.

He stated that there were five people on board the aircraft and that there were no stops between Winnipeg and Edmonton.

He testified that on the approach to Edmonton the aircraft engine was "cutting in and out".

He stated that he heard the pilot transmitting to the Edmonton FSS stating that the pilot did not think they would be able to land at the airport because of lack of power from the engine. Mr. Murray indicated that the pilot was rocking the wings of the aircraft on the descent.

Mr. Murray testified that on the descent he observed lights and trees and he stated that the aircraft experienced a bumpy landing in a field coming to rest about 150 to 200 yards from a residential building. Mr. Murray stated that the exterior of the aircraft was not extensively damaged but the landing gear and the propeller were damaged.

Mr. Murray testified that the passengers and the pilot were not seriously injured but all were in shock.

Mr. Murray stated that on the flight from Edmonton to Winnipeg a stop was made in Yorkton, Saskatchewan because Mr. Murray was in distress and had to relieve his bladder.

CROSS-EXAMINATION

Mr. Murray stated that he was aware that the engine of the aircraft was "sputtering" on the descent into Yorkton, Saskatchewan on the flight from Edmonton to Winnipeg. He indicated that the pilot advised the passengers that this situation was common for Cessna T210s and it was referred to as a vapor lock and could be cured by selecting alternate fuel tanks.

Mr. Murray testified that he observed the same situation occurring when they were on the approach to Edmonton City Centre Airport. He stated that he observed the pilot selecting alternate fuel tanks and rocking the wings but the power did not return.

Mr. Murray stated that he considered Dr. Pawluski to be a safe and conscientious pilot. He stated that Dr. Pawluski always carried a cell phone and answered his patients promptly and with courtesy when they were engaged in other activities.

REDIRECT

Mr. Murray stated that the sputtering of the engine continued for a period of three to five minutes on the approach to Yorkton, Saskatchewan. He accepted the explanation that this condition was common to this type of aircraft.

He stated that he was not aware of any attempt to level the wings of the aircraft for the refuelling procedure in Winnipeg.

He observed the aircraft venting fuel in Winnipeg after the fuelling process.

Constable Quentin Miller #2032 Edmonton City Police

The witness was sworn. Const. Miller testified that he attended a crash site of an aircraft on March 1, 1999 at 2330 hours local time at 17020 112 Street, Edmonton, Alberta.

He stated that he found an aircraft C-GNSC in a field located about 50 metres from a house. The aircraft was resting on top of a septic tank with damaged landing gear.

He stated that he interviewed five individuals and there were no apparent injuries to any of the passengers or crew. He further stated that EMS and FIRE CREWS preceded him to the crash site.

He indicated that there was dense housing between the crash site and the airport.

Witness Jack Koosel

The witness was sworn. Mr. Koosel testified that he was an aviation inspector with Transport Canada.

Mr. Koosel submitted a number of documents, which are listed as evidence.

M-1 : Cadors Report No. 99C0142

Mr. Koosel testified that this was the report generated by NAV CANADA which commenced the investigation.

M-2 : Minister's Observer Initial Report

Mr. Koosel testified that two Transportation Safety Board personnel generated this report. It mirrors the Cadors (M-1) report and indicates that due to "shortage of staff at TSB Edmonton, it is likely that further investigation will be limited."

M-3 : Computerized Airworthiness Information System

Mr. Koosel testified that these reports give a history of the aircraft C-GNSC while it is in Canadian registry. He specifically referred to page 4 of 5 indicating the aircraft had been damaged in 28/9/1995 but repaired in 11/3/1996.

M-4 : Current File Inquiry (C.C.A.R.C.S.)

This report indicates that the current owner is Kerry Pawluski Professional Corporation with a C of R or temp C of R dated 23/12/1998.

M-5 : Applicant Personal Information (6 pages)

M. Koosel testified that the pilot Dr. Kerence Pawluski was in possession of a current class 3 medical certificate, private pilot licence, instrument rating and type rating.

M-6 : Investigators Notes (3 pages)

Mr. Koosel testified from his notes that his discussion with Dr. Pawluski he was informed that the aircraft was fully fuelled in Winnipeg and fuel was observed venting from the aircraft due to expansion. He further testified that he was advised that the power settings were set at 2300 RPM/26²hg, giving 164 KTS and burning 88 pounds of fuel per hour.

M-7 : Upper Wind Forecast

Mr. Koosel testified that the flight from Winnipeg to Edmonton was flown at 10,000 feet ASL. On page 5 of the Wind Forecast this would give the following wind component:

Winnipeg 320 degrees 21 knots
Saskatoon 330 degrees 18 knots
Edmonton 310 degrees 18 knots

M-8 : Flight Plan

Mr. Koosel testified that this NAV CANADA document shows that C210/L, registration C-­GNSC filed for departure from Winnipeg at 0115Z with a routing Winnipeg direct Yorkton direct Saskatoon direct Edmonton estimating Edmonton at 0500Z.

The aircraft carried 06.10 hours of fuel, five passengers and crew and was IFR. The pilot was listed as Kerry Pawluski licence number P365094.

M-9 : Flight Data Strips

Mr. Koosel testified that these are the IFR flight progress strips. He stated that C-GNSC was off Winnipeg at 01 0152Z by Yorkton at 0318Z and by Saskatoon at 0430Z.

M-10 : Performance Criteria Cessna Model T210M (5 pages)

Mr. Koosel testified that by referring to the Cessna range profile sheet for this particular aircraft it was possible for the aircraft to complete the trip from Winnipeg to Edmonton with adequate IFR reserves. This is shown on figure 5-8 of the Range Profile manual.

General Observations

Mr. Koosel in reference to his notes (M-6) testified as follows:

The aircraft was fully fuelled in Winnipeg.

The power settings were set at cruise at 2300RPM, 26² of manifold pressure giving 164K true airspeed and consuming 88 lbs. per hour of fuel.

The actual weights of the passengers were used to calculate the weight and balance.

Mr. Koosel testified that the weight and balance for the aircraft C-GNSC were within the design criteria established by the manufacturer.

He further testified that he consulted with two other T210 owners. The general impression he received from these conversations was that the range given in the operator's manual was hard to achieve and that the engines were intermittent at times due to vapor lock.

CROSS-EXAMINATION

Mr. Koosel stated that he based his investigation on the Cadors Report (M-1) and his discussions with the other two T210 operators.

He further stated that he had not requested the fuel log from the pilot.

Mr. Koosel testified that on interpretation of the owners manual (M-10) and the weather at the time of flight together with the upper winds, the aircraft should have been able to complete the flight.

FOR THE RESPONDENT—The Document Holder

Dr. Kerence Peter Pawluski was sworn in as a witness. Dr. Pawluski submitted the following evidence:

D-1 : Statement to Avemco Insurance

The statement covers the entire flight from departing Edmonton City Centre Airport on February 25, 1999 to Winnipeg and returning from Winnipeg on March 1, 1999 with the subsequent landing in the field short of the runway in Edmonton.

D-2 : Notice of Assessment of Monetary Penalty dated June 18, 1999

This assessed penalty of $500.00 was issued against Dr. Pawluski under subsection 602.88(2) of the CARs, which claims that the document holder "commenced a flight without sufficient fuel."

D-3 : Notice of Cancellation of Review Hearing

Notice of withdrawal of monetary penalty dated June 18, 1999 and advising that the Civil Aviation Tribunal hearing has been cancelled.

D-4 : Notice of Assessment of Monetary Penalty dated December 1, 1999

This assessment of monetary penalty was assessed on December 1, 1999 under section 602.01 of the CARs alleging that the Respondent Dr. Pawluski on or about the 2nd day of March 1999, at or near Edmonton, Alberta, did operate an aircraft identified as Cessna T210M, C-GNSC, in such a reckless or negligent manner as to endanger the life or property of any person, by conducting a flight without sufficient fuel.

D-5 : Invoices from Foster Aircraft Maintenance Ltd.

Four pages outlining work performed on C-GNSC prior to the flight to Winnipeg.

D-6 : Cessna Pilots Association Letter to New Cessna 210 Owners

This document cautions owners of Cessna 210 aircraft that there can be inherent problems with fuel capacity if the aircraft is not level on refuelling (page 2).

They also refer the "history" the Cessna 210 has had with vapor locks and specifically the operation of the reserve fuel tanks (page 2).

D-7 : John Frank—Unfortunate Statistic (3 pages)

The document states that a maximum of two gallons might be vented from the Cessna 210 and not up to twenty gallons (pages 2 and 3).

D-8 : Letter to K. Pawluski from Charlie Becker (3 pages)

The document on page 3 cautions pilots to ensure they monitor the line personnel to ensure the fuel tanks are full.

D-9 : Witness Evidence Neil J. G. Armstrong (1 page)

D-10 : T210 Service Manual

It is recommended that Models 210 & T210 have their fuel quantity indicators and sensing units inspected every 50 hours.

D-11 : May 18, 1999 Letter from Ducey Avionics Ltd.

This letter outlines projected work to be undertaken on C-GNSC.

Dr. Pawluski testified that March 1, 1999 was a cold wet day in Winnipeg. It was their intention to depart Winnipeg early in the morning but because of weather delays they did not depart until early evening.

Dr. Pawluski stated that he and his passenger, Mr. Ian Murray together with the aircraft refueller, Kelly Shell in Winnipeg observed the aircraft venting fuel in the hangar. He estimated that no more than three gallons were vented. This observation he used to determine that the aircraft was fully fuelled.

He stated that his autopilot was unserviceable and he thus had to hand fly the aircraft.

He testified that he used his GPS for enroute tracking and estimated arrival times at checkpoints and at the final destination. Using these calculations at no time did he believe that he was short of fuel.

CROSS-EXAMINATION

Dr. Pawluski admitted to having a long duty day. He was checking with the weather office every hour but as a medical doctor he was used to long duty days.

He further advised that the weather was IMC but it was an easy flight as they were above clouds all the way.

As there was no further evidence, the evidentiary record was closed.

FINAL ARGUMENTS

Mr. McFarlane

Mr. McFarlane talked about negligence and recklessness. Would a prudent person fly an aircraft with four passengers over a distance from Winnipeg to Edmonton at night in IFR conditions after a long duty day?

Dr. Pawluski

Dr. Pawluski in preparation for use of the aircraft ensured that the aircraft was mechanically sound. He delayed his departure until the weather was suitable for his trip. He recognized that the T210 had a history of fuel problems but he ensured that the aircraft was fully fuelled in Winnipeg. He stated that because of his knowledge as a medical examiner for Transport Canada he took his flying extremely seriously and he would not recklessly endanger the lives of any passengers or people on the ground.

ANALYSIS

  1. The aircraft was properly registered and licensed — Exhibits M-3, M-4.
  2. The landing off-airport did occur — Exhibits M-1, M-2 (Although there is a discrepancy in the time reported by Constable Miller and Mr. Murray, the evidence is clear that the aircraft landed in a field north of the Edmonton City Centre Airport).
  3. Dr. Pawluski piloted the aircraft, and he conducted an IFR flight from Winnipeg to Edmonton on March 1, 1999 with adequate fuel on board — Exhibit M-8 and testimony of Mr. Koosel (referring to manuals Exhibit M-10) and Mr. Ian Murray.
  4. The aircraft was on an IFR flight plan from Winnipeg to Edmonton and was vectored for a back course approach on runway 16 at the Edmonton City Centre Airport — Exhibit M-1.
  5. The aircraft was subject to extensive maintenance, including the fuel system, prior to the flight in question — Exhibit D-5.
  6. There is a generic fuel management problem with the Cessna T210 aircraft — Exhibits D-6, D-7, D-8.
  7. The aircraft operations manual indicates that the aircraft was designed with enough fuel capacity with reserves to complete this trip — Exhibit M-10.

Section 602.01 of the CARs states: "No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person."

In the Notice of Assessment of Monetary Penalty the Minister of Transport states: "Canadian Aviation Regulation 602.01 in that on or about the 2nd day of March 1999, at or near Edmonton, Alberta, you operated an aircraft identified as Cessna T210M, C-GNSC, in such a reckless or negligent manner as to endanger the life or property of any person, by conducting a flight without sufficient fuel."

Paragraph 7.9(5)(a) of the Aeronautics Act states: "the burden of proving that the person appearing before the member has contravened the designated provision that the person is alleged to have contravened is on the Minister".

In addition to the words of section 602.01 of the CARs as it appears in the CARs, the Minister has included in the Notice of Assessment of Monetary Penalty the particulars of the allegation by adding "insufficient fuel".

I will deal with both sections.

Fuel

There is no proof that Dr. Pawluski did not add sufficient fuel in Winnipeg. There is testimony from Dr. Pawluski and Mr. Ian Miller that they observed fuel venting from the aircraft, which would indicate full fuel.

The inspector through testimony did not obtain the fuel logs from the pilot or obtain copies of the fuel loads from the refueller in Winnipeg.

Mr. Koosel by his own testimony stated that the aircraft could complete the trip with adequate fuel reserves provided the proper leaning techniques were used (Exhibit M-10).

There is no additional evidence, other than the statement by Dr. Pawluski about his leaning practices of 50 degrees off peak EGT, from other passengers that improper leaning techniques were used.

Reckless and Negligent

Dr. Pawluski engaged his maintenance firm to ensure that the aircraft was airworthy. He stated that he went to great lengths to ensure this work was completed.

Dr. Pawluski was on an IFR flight plan from Winnipeg to Edmonton. The Minister did not provide any proof from ATC that indicated Dr. Pawluski had strayed from his course or time frames as filed in his flight plans. These deviations would have increased his flight times.

He was on a radar vector for the back course approach on runway 16 at Edmonton and the only deviation occurred when he landed in a field.

There is no evidence before me to indicate the aircraft departed Winnipeg with insufficient fuel and I see no evidence from ATC, passengers or ground observers that the pilot flew in a reckless or negligent manner.

DETERMINATION

I dismiss the Minister's allegation and cancel the monetary penalty of $1,000.00 assessed against Kerence Peter Pawluski.

E. David Dover
Member
Civil Aviation Tribunal