Decisions

CAT File No. W-2446-41
MoT File No. SAP-5504-44687

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Stage Air Limited, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, s. 703.23

Landplane, Gliding distance from shore, Flight over water


Review Determination
Sandra Lloyd


Decision: December 27, 2002

I find the evidence proves no violation occurred. Therefore, the sanction levied against the Respondent is cancelled.

A review hearing on the above matter was held Wednesday, September 18, 2002 at 10:00 hours at the Executive Inn and Conference Centre, in Penticton, British Columbia.

BACKGROUND

Stage Air Limited ("Stage Air") is an air operator with its main base in Penticton and a sub-base at Inuvik. In July 2001, Transport Canada Enforcement in Edmonton received a complaint from another operator that Stage Air had carried passengers in a single-engine land aircraft on a flight during which the aircraft was operated over water beyond gliding distance from shore. Civil aviation inspector Mr. William Curtain investigated the complaint. Based on the evidence he gathered, Mr. Curtain concluded that Stage Air had violated section 703.23 of the Canadian Aviation Regulations (CARs). Transport Canada Enforcement subsequently levied a $1,250 monetary penalty against Stage Air alleging the following:

OFFENCE #1CARs 703.23

On or about the 6th day of July 2001, at or near Sachs Harbour West Territories, being an air operator, you did operate a land aircraft, to wit, a Cessna 208 Grand Caravan, Canadian registration C-GGUH, over water beyond the point where the said land aircraft could reach shore in the event of an engine failure, when you were not authorized to do so in your Air Operator Certificate, a violation of section 703.23 of the Canadian Aviation Regulations.

Stage Air failed to pay the assessed monetary penalty resulting in the hearing of this matter before the Civil Aviation Tribunal (the "Tribunal").

THE LAW

Section 703.23 of the CARs:

Aircraft Operating over Water

703.23 No air operator shall, except when conducting a take-off or landing, operate a land aircraft over water, beyond a point where the land aircraft could reach shore in the event of an engine failure, unless the air operator
(a) is authorized to do so in its air operator certificate; and
(b) complies with the Commercial Air Service Standards.

EVIDENCE

The Applicant Minister of Transport (the "Minister") called as its first witness Mr. Curtain, who testified as to his investigation of this allegation. He identified a number of documents which showed, among other things, that Stage Air had custody and control of aircraft C-GGUH at the relevant time; that Stage Air held an air operator certificate which authorized it to transport passengers single-pilot in its Caravan aircraft in IFR flight or night VFR flight in accordance with Subpart 3 of Part VII of the CARs; and that C-GGUH was a Cessna Grand Caravan with a cargo pod underneath.

Mr. Curtain also identified a fax letter and attachments from Stage Air's operations manager, which he received on August 14, 2001. The attachments included excerpts from C-GGUH's logbook which showed that C-GGUH flew from Inuvik to Sachs Harbour on July 6, 2001 (the "flight") and that the pilot-in-command was "Myers". The logbook showed that the air time for the flight was two hours and that eight persons were on board. The attachments also included a copy of what is apparently a satellite image of the relevant area on July 7, 2001.

Mr. Curtain further identified an e-mail document he received from Stage Air in September 2001 which showed satellite images of the area in question. These satellite images were untitled and undated. Mr. Curtain drew the approximate track of the flight on two of the three images. On one image he drew lines showing the maximum gliding distance of the Cessna Caravan from 10,000 feet ASL[1] and the portion of the flight track from which he determined a Cessna Caravan could not accomplish a glide to shore in the event of an engine failure.

Mr. Curtain also identified two ice charts of the area in question, dated July 2 and July 9, 2001, which he had obtained from Canadian Ice Services. The charts included a legend explaining how to interpret the charts. He said no chart was available for July 6, 2001. I understood that Mr. Curtain concluded that the charts showed mainly first-year ice floes between 30-70 centimetres thick and 100-500 metres in size. He testified that he concluded, after examining the charts, that there had been large chunks of floe ice under C-GGUH's flight path. However, he also said there were still portions of the flight that were over water and that the ice did not amount to "shore" within the meaning of the CARs.

Mr. Curtain had drawn, on the July 9, 2001 ice chart, a square straddling the flight path of the aircraft over the sea (the "Square"). I understand that the Square approximates the area to which the aircraft could have glided during the portion of the flight where it could not have glided to land.

Mr. Curtain provided copies of the definitions of "shore" and "water" from Webster's dictionary.[2]

Mr. Curtain further testified that he spoke by telephone to the pilot-in-command of the flight. He said he understood from that conversation that the aircraft involved was a single-engine Cessna Caravan carrying passengers on a VFR flight, that no oxygen was required, and that the pilot thought that the flight was conducted at about 7,500-8,500 feet ASL. Mr. Curtain also understood the pilot to say that a portion of the flight was over the Beaufort Sea and that there were large portions of ice in the sea. He said the pilot also told him that he could have landed on the ice but could not have taken off again and that the pilot thought that flying over the ice was not a problem.

Mr. Curtain said he reached the conclusion, from the information he gathered, that the aircraft was a single-engine wheel aeroplane that was flown at or below 10,000 feet with passengers on board and that portions of the flight were flown over open water the size of rivers and lakes. Further, the ice involved was first-year floe ice that was close together but not structurally solid.

The Minister attempted to enter as evidence Mr. Curtain's notes of his conversation with the pilot. I did not accept them, because Mr. Curtain was present to attest to the conversation himself.

Mr. Curtain provided a maximum glide chart from the Cessna Caravan flight manual that showed that a Caravan with a pod like C-GGUH's would glide, from 10,000 feet, a little more than 20 miles in a no-wind condition.

Mr. Curtain also identified an expanded portion of a world aeronautical chart WAC C-10 which depicts the area of Inuvik and Sachs Harbour. He also provided an original copy of that entire chart.

Finally, Mr. Curtain identified an expanded portion of the MacKenzie Delta VFR navigation chart, upon which he had drawn the approximate path of the flight and the possible gliding distances of the aircraft to the right and left of the track from 8,000 and 10,000 feet in a no-wind condition.

Mr. Holmes, on behalf of Stage Air, cross-examined Mr. Curtain on a number of issues: the wording of the allegation; whether or not he gave warnings to the operations manager and the pilot before speaking to them; whether or not the operations manager said anything about the size of lakes and rivers; the use of dictionaries to determine legal issues; and the effect of wind on gliding distances. Mr. Curtain admitted he was not an expert on ice and did not know the effect that wind would have on ice floes nor did he know what the temperature or wind were on the day in question. He also admitted he did not ask Mr. Meyers how many hours he had on the aircraft and that Mr. Meyers told him the chunks of ice were all together. He further admitted he did not know if it was industry practice to fly across frozen water.

On re-examination Mr. Curtain was unable to say whether ice chunks that were all together would amount to no chunks at all.

The Minister's second witness was aviation safety inspector Mr. Abbott. He is a check pilot who has been with Transport Canada since 1998. His experience includes water bombing and flying Hercules aircraft with the Canadian Air Force world-wide. With Transport Canada he is authorized to consult with operators to interpret the CARs. The Minister wished to tender him as an expert on the application of the regulations, to operators such as Stage Air and the operation of single-engine turbine aircraft in the 703 category. I did not accept him as an expert witness on the application of the regulations because the application of the law to the facts is a matter for argument and is not a matter of evidence. Further, the application of the law to the facts is the ultimate issue that the Tribunal is being asked to decide.

Nevertheless, Mr. Abbott, as an experienced pilot, did give opinion evidence as to why it is dangerous for a single-engine aircraft to fly over water beyond gliding distance from shore. He said that if a single-engine aircraft had an engine failure and a consequent forced landing in Arctic waters, there would be a very limited chance of survival for the persons on board and there would be a danger of the aircraft being submerged.

Under cross-examination, Mr. Abbott was asked if it is dangerous to land an aeroplane on ice. He stated that it would depend on the nature of the ice and said that in this case, he had no idea what condition the ice was in. He agreed it is common for single-engine aircraft to fly over ice if it is a contiguous ice cover. He said he did not have a definition of a contiguous ice cover. He said Transport Canada provides no guidance to aviators as to when one can or should fly over ice except as provided by the regulations which state that in single-engine aircraft with passengers, pilots are to fly within gliding distance to shore. He said an operations manager, a supervisor, a chief pilot or passengers may determine whether it is safe to fly over ice. He said it is a company decision as to the stage at which a body of water becomes unfrozen and the pilot, chief pilot and operations manager all bear responsibility in such matters. He said if they wrongly determine that a flight can be safely conducted, for example a pilot ends up flying over open water, the pilot would be expected to turn around and come back. Mr. Abbott's opinion was that an ice floe is not part of the shore even if it extends from shore. He agreed there is a problem with the definition of what is safe and what is not and that there is a discretion left to pilots and those responsible. Pilots are to use their judgment.

The Minister called no further witnesses, and the Respondent did not call any witnesses.

ARGUMENT

Mr. McFarlane, for the Minister, argued that the evidence proved on a balance of probabilities that Stage Air had violated section 703.23 of the CARs. He questioned the possibility of the aircraft successfully landing on a chunk of ice and, even if it did so, questioned what harm would come to the passengers if they were stranded in such a place. He pointed out that the passengers on the aeroplane were paying passengers, members of the flying public, who in this case he saw as unsuspecting victims. He stated his concern that their trust not be betrayed.

Mr. Holmes, for the Respondent Stage Air, argued that the Minister failed to produce evidence of the exact condition of the ice surface and was unable to accurately depict the gliding distance of the aircraft. He pointed out Mr. Abbott's evidence that it was industry standard to fly across ice and that the assessment of the safety of flying over the ice is left to the pilot, management and passengers. He argued that the pilot in this case acted with due diligence by obtaining an ice floe photograph and made his assessment based on his considerable northern experience and, in light of no other guidelines to assist him, he elected to continue with the flight. I questioned Mr. Holmes as to whether there was any evidence that the pilot had checked photographs before the flight, since no witness had given such evidence. Mr. Holmes pointed out that the operations manager stated in her fax letter to Mr. Curtain that the pilot had checked the photographs. Mr. Holmes further argued that the pilot's due diligence was confirmed by the fact that the passengers flew with him.

In rebuttal, Mr. McFarlane argued that the condition of the ice itself is irrelevant because there was water present and the amount of water is not relevant. He said the industry standard is not relevant to my determination of whether or not a violation had taken place, but rather, what we are dealing with here is the law contained in section 703.23 of the CARs. He pointed out that there was no evidence as to whether the passengers were pleased or displeased with the flight. He disagreed with the idea that there are no guidelines in this matter, because the regulations themselves are there to guide us.

Mr. McFarlane argued that the monetary penalty of $1,250 assessed against Stage Air was in line with the Ministry's guidelines for a first offence and was far under the maximum established for the offence. Mr. Holmes chose to make no submissions with respect to the amount of the sanction.

ONUS OF PROOF/ISSUES

The onus is on the Minister to prove, on a balance of probabilities, each element of the offence. If they have succeeded in doing so, the onus then shifts to the Respondent to prove, on a balance of probabilities, its stated due diligence defence, that is, that the Respondent took all reasonable steps to prevent the commission of the offence.

The Minister's evidence as to the identity and description of the single-engine aircraft, the operator, and the fact that the flight took place as described, was unchallenged by the Respondent Stage Air.

The issues for me to determine are:

1. Was the flight conducted over water beyond gliding distance from shore?

2. Did Stage Air prove its due diligence defence?

DISCUSSION

1. Was the flight conducted over water beyond gliding distance from shore?

The regulations do not specify a definition for "water", "ice" or "shore". I accept that where the Act or regulations do not specify a definition for specific words, we may rely on a standard dictionary definition of those words to aid in interpretation of a regulation.

The definition of "water" provided by Mr. Curtain points out, among other things, that water is "the liquid that ... freezes at 0° C ...". The definition of "shore" that he provided is, in part, as follows: "the land bordering a usu. large body of water ... land as distinguished from the sea ...". That definition also defines "shore" as a verb: "to support by a shore ... to give support to" and as a second noun: "a prop for preventing sinking or sagging".

My own Oxford dictionary defines "ice" as "Frozen water; water rendered solid by cold ...".

Section 703.23 of the CARs prohibits flight by a land aircraft over water beyond a point where the aircraft could reach shore in the event of an engine failure. A strict interpretation of section 703.23, using the basic dictionary definitions of "water", "shore" and "ice" as an aid to interpretation, could lead to the conclusion that any flight over ice beyond gliding distance from land would result in a violation of section 703.23 of the CARs. However, my view is that this narrow interpretation would be nonsensical. It does not make sense that it would be unlawful for an aeroplane to fly over ice that could safely be landed upon, while at the same time it is lawful for a single-engine aircraft to fly over land areas upon which no safe forced landing area can be found (such as some mountainous areas).

This view is supported by the evidence of the Minister's witness, Mr. Abbott, that it is common for single-engine aircraft to be flown over ice if there is contiguous ice cover.

The obvious intent of section 703.23 of the CARs is that it is to prevent forced landings into water by land aeroplanes. The dangers of such an event were enunciated by the witness, Mr. Abbott. There is a danger that the aircraft could be submerged, and there is a good chance that passengers would not survive the consequences of such an event, even if they could survive the impact itself. Survivability is particularly questionable in the event that an aircraft force-landed into Arctic waters.

I think it is sensible to conclude that section 703.23 of the CARs must be interpreted in such a way that there would be no violation if a flight takes place over contiguous ice on which one could be certain that an aircraft could land without contacting water.

I therefore interpret the word "shore" in section 703.23 of the CARs to include land as well as contiguous ice that could safely support an aircraft. This is consistent with the full definition of "shore" provided by Mr. Curtain.

I am satisfied from the evidence that the flight took place over water, albeit that most of the water was in its frozen state. I must now consider whether the Minister's evidence shows, on a balance of probabilities, that the aircraft was operated beyond gliding distance to land—and beyond ice that would amount to shore within the meaning of section 703.23 of the CARs—in the event of an engine failure.

I have considered Mr. Curtain's verbal and documentary evidence as to the gliding distance of the Cessna Caravan and its application to the flight. I accept that the Square, drawn by Mr. Curtain on the July 9, 2001 ice chart, reasonably approximates the gliding range of the aircraft, during the portion of the flight where the aircraft could not have glided to land. While wind would have some effect on the gliding distance of the aircraft, I do not believe it would have enough effect on the dimensions of the Square to make any material difference in this matter. The evidence shows that for approximately 45 nautical miles during the flight, the aircraft could not have glided to land. No evidence was led to the contrary on this point, nor did the Respondent suggest the flight was conducted at an altitude higher than 10,000 feet.

My own examination of the July 9, 2001 ice chart, and its accompanying Key to Sea Ice Symbols, shows that under approximately three-quarters of the Square there was at least nine-tenths of ice cover (indicated by top symbol "9+" on the symbol-oval to the left of the Square), that was thick first-year ice (indicated by the second-to-bottom symbol "4", followed by a dot), in the form of vast floes of 2-10 kilometres in width (indicated by the bottom symbol "6"). There was also a trace of thicker, older ice (indicated by a "7" to the left of the oval). I will call this first area of ice the "Main Ice Area".

It is significant that the "4" on the symbol-oval for the Main Ice Area is followed by a dot. Ice thus described is more than 120 cm thick. Ice described by a simple "4" would be only 10-15 cm thick.

There was another area of ice just north of the latter part of the flight path, and representing about one-quarter of the Square, which is marked on the ice chart with a "P". The symbol-oval marked "P" describes that area as also being nine-tenths or more covered by ice. However, seven-tenths of that ice was thin first-year ice 30-70 centimetres thick ("7") in the form of vast floes 2-10 kilometres wide (the bottom left "6"), and three-tenths of it was thick first-year ice more than 120 cm thick (indicated by the "4", followed by a dot), in the form of big floes 500-2000 metres wide (the bottom right "5"). Similar ice floe coverage is depicted on the July 2, 2001 ice map, although it is apparent there had been some shifting of ice between the two dates, such that it appears the Main Ice Area would have been under most if not all of the Square on July 2.

My interpretation of the ice charts appears to be significantly different from Mr. Curtain's interpretation. On the July 9, 2001 ice chart, he described both areas of ice that I describe above (the Main Ice Area and the "P" area) as being one and the same. He marked them both with a pink highlighter and described them in writing on the July 9 ice chart as being "9/10 med flow (100-500 M) 1st YR 30-70 cm". Mr. Curtain admittedly is not an expert on ice, and I think he mistakenly interpreted the July 9, 2001 ice chart.

I find that the Minister's evidence has proved that the aircraft was operated over water, albeit that much of the water was in its frozen state. For a portion of the flight, the aircraft could not have glided to land in the event of an engine failure. However, the ice charts show that most if not all of the sea in that area was at least 9/10 covered with ice of a thickness—more than 120 cm—that could easily support the weight of an aircraft, in the form of vast floes 2-10 km in size.

I find that the Main Ice Area amounted to "shore" within the meaning of section 703.23 of the CARs. The evidence shows that the ice was sufficiently contiguous and thick that I find that an aircraft could have force-landed upon it and been safely supported by it without contacting water.

I therefore conclude that the Minister's evidence has not proved on a balance of probabilities that the aircraft was operated beyond gliding distance from shore. Had I interpreted the ice charts to show less ice coverage, I would have found that the Minister had made its case.

2. Did Stage Air prove its due diligence defence?

Where the Minister makes a prima facie case that the document holder has committed a violation, the document holder may nevertheless escape liability for the offence if it proves on a balance of probabilities that it took all reasonable steps to prevent the commission of the offence. This is called a due diligence defence.

As stated above, Mr. Holmes argued that Stage Air had a due diligence defence because the pilot obtained an ice floe (satellite) photograph and made his assessment (as to the safety of the flight) based on his considerable northern experience and, in light of no other guidelines to assist him, elected to continue with the flight. Mr. Holmes further argued that the pilot's due diligence was confirmed by the fact that the passengers flew with him.

However, there was no evidence tendered at the hearing as to pilot Meyers' flying experience, northern or otherwise. Also, I do not accept that the fact that passengers go on a flight is confirmation of a pilot's or an operator's due diligence. There was no evidence led at the hearing as to the identity or knowledge of the passengers that were on the flight. The travelling public places their trust, and indeed their lives, in the hands of professional pilots and air operators. Passengers cannot be expected to have the knowledge, nor is it in any way their responsibility, to determine whether or not a flight should be undertaken or whether a pilot has been diligent in his duties. It is the pilots' and air operators' responsibility to ensure, on behalf of their passengers, that flights are made legally and safely.

Further, the only evidence that the pilot obtained and checked a satellite photograph before the flight is contained in the fax letter from the operations manager to Mr. Curtain dated August 7, 2001. I do not find the letter to be useful evidence as to whether or not the pilot exercised due diligence. The letter sometimes refers to more than one pilot with respect to the flight. This appears to contradict other evidence that indicates that only one pilot operated the flight. Also, the letter evidence as to the pilot's checking the satellite photos is double hearsay and unsupported by any other evidence. The writer of the letter was not the pilot, who would be the person with direct knowledge of whether and how he checked the ice cover, but was a person who was allegedly told these facts by him. I therefore would give no weight to the letter evidence in support of a due diligence defence because I find it is too unreliable.

Additionally, no evidence was given as to how one can accurately interpret a satellite image to determine the extent or quality of ice cover, or whether or not it is industry practice to use such images for that purpose. I am really unable to say whether or not the satellite images show that there would have been sufficient ice, at any particular point in the relevant area, of a type upon which an aircraft could land without contacting water. No witness explained how one could make such a determination based on a photograph taken from a satellite. I therefore find the satellite images of no use in determining whether or not the pilot exercised due diligence.

It was the evidence of the Minister's witness, Mr. Abbott, that there is a discretion left to the operator and its pilots as to whether or not a flight should be conducted over ice. Nevertheless, had the Minister's evidence proved on a balance of probabilities that a violation had occurred, the onus would have shifted to the Respondent to prove any due diligence defence. The Respondent in this case did not demonstrate at the hearing that it took all reasonable steps to avoid a violation of section 703.23 of the CARs.

However, since I have found in this case that the Minister's evidence has shown that the aircraft could have glided to ice that I find amounted to shore within the meaning of section 703.23 of the CARs, the Respondent is not required to prove due diligence.

CONCLUSION

I find the evidence proves no violation occurred. Therefore, the sanction levied against the Respondent is cancelled.

Sandra K. Lloyd
Member
Civil Aviation Tribunal


[1] Above sea level.

[2] Webster's Ninth New Collegiate Dictionary at 1089, 1331.