Decisions

TATC File No. W-2979-33
MoT File No. SAP-5504-52310 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Ralph Emsland, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.86(1)(b) and 605.93(1)(b)


Review Determination
William Thornton Tweed


Decision: November 23, 2004

Offence #1: I confirm the Minister's finding that the cargo and equipment on board the subject aircraft was not secured as required by paragraph 602.86(1)(b) of the Canadian Aviation Regulations and confirm the monetary penalty of $250.00.

Offence #2: As it has not been proven that Mr. Emsland made the subject entry or that he was the pilot-in-command, the charge with respect to paragraph 605.93(1)(b) of the Canadian Aviation Regulations is dismissed.

The amount of $250.00 is to be made payable to the Receiver General for Canada and received by the Tribunal within thirty-five days following service of this determination.

A review hearing on the above matter was held Monday, November 8, 2004 at 10:30 hours at the Federal Court of Canada in Edmonton, Alberta.

MOTION

At the outset of the hearing the Minister moved to amend the Notice of Assessment of Monetary Penalty by changing the date of the alleged offence from October 16, 2003 to October 6, 2003. The amendment was to correct a typographical error. The Minister had provided the document holder with reasonable notice of the proposed amendment.

In the circumstances the motion to amend was granted.

BACKGROUND

On October 6, 2003, Ralph James Emsland conducted a test flight on a Piper Cheyenne PA -31T Canadian registered C-GVKA at the Edmonton City Centre Airport. On landing, Inspectors Hewitt and Duhoux carried out a ramp inspection that resulted in the two charges.

Offence #1 - CARs 602.86(1)(b)

The Minister alleged that Ralph James Emsland operated an aircraft when equipment and cargo were not restrained thus committing a violation of paragraph 602.86(1)(b) of the Canadian Aviation Regulations (CARs).

EVIDENCE

Mr. Emsland admitted that he was the pilot-in-command of C-GVKA during the October 6, 2003 flight at the Edmonton City Centre Airport.

Inspector Duhoux testified that he saw the subject aircraft land and taxi to a stop and that upon looking inside the aircraft immediately after the aircraft came to a stop he observed cargo that was not tied down. In particular an open plastic tub containing parts was on a seat and not secured. Two file boxes containing manuals and parts were on the floor and a commissary / bulkhead that was not secure. Mr. Duhoux said he reached in and was able to move the bulkhead and from that determined that it was not secured. Inspector Hewitt made similar observations but made no attempt to move the bulkhead. Neither Inspector Hewitt nor Inspector Duhoux entered the aircraft.

Mr. Emsland in his defence stated that the file boxes were wedged between the seat rails and the side of the aircraft and were therefore secure. He implied that the bulkhead was secure and that Inspector Duhoux moving it side to side did not prove that it was not secured. He did not indicate how or if the bulkhead was secured. He made no mention of the plastic tub.

THE LAW

Paragraph 602.86(1)(b) of the CARs:

602.86 (1) No person shall operate an aircraft with carry-on baggage, equipment or cargo on board, unless the carry-on baggage, equipment and cargo are

(a) stowed in a bin, compartment, rack or other location that is certified in accordance with the aircraft type certificate in respect of the stowage of carry-on baggage, equipment or cargo; or

(b) restrained so as to prevent them from shifting during movement of the aircraft on the surface and during take-off, landing and in-flight turbulence.

DISCUSSION

The regulation requiring that cargo and equipment in an aircraft be restrained is directly related to safety. To meet the requirements of the regulation the cargo or equipment must be restrained from movement in any direction. The plastic tub was not restrained. The file boxes were jammed between seat rails. Even if this procedure restrained the cargo from movement fore and aft and side to side (which I doubt) it did not restrain vertical movement. I accept the Minister's evidence that the commissary / bulkhead moved when he tested it for security. The requirements as set out in the CARs were not met. A determination that turbulence is not forecast does not relieve a pilot-in-command from the obligation to see that his cargo is restrained as required by the CARs.

DETERMINATION

I confirm the Minister's finding that the cargo and equipment on board the subject aircraft was not secured as required by the CARs and confirm the monetary penalty of $250.00.

Offence #2 - CARs 605.93(1)(b)

The Minister alleges that on or about July 16, 2003 Ralph James Emsland made an entry in the journey log book of aircraft C-GVKA and did not sign the log book.

EVIDENCE

A copy of the log book was admitted into evidence as Exhibit M-1. It shows an entry for a flight on July 16, 2003 from Calgary to Edmonton. The same entry shows Emsland/Bourne as the names of the crew. Mr. Emsland stated that he did not make the entry in the journey log, further commenting that the entry was not his handwriting. He was not asked if he knew who made the entry or if he was the pilot-in-command on the flight in question. There is no other evidence to prove that he was the pilot-in-command.

DISCUSSION

The fact that some unidentified person made an entry in a log book that names Mr. Emsland and suggests he was the pilot-in-command does not make it so. Unless he was in fact the pilot-in-command he is not responsible for the entry in the log book.

DETERMINATION

As it has not been proven that Mr. Emsland made the subject entry or that he was the pilot-in-command the charge is dismissed.

William T. Tweed
Member
Transportation Appeal Tribunal of Canada