Decisions

TATC File No. Q-3425-33
MoT File No. N5504-61331

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Gian Piero Ciambella, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, 7.7
Canadian Aviation Regulations, SOR/96-433, 605.14(j)(i)


Review Determination
Howard M. Bruce


Decision: March 28, 2008

Citation: Ciambella v. Canada (Minister of Transport), 2008 TATCE 17 (review)

Heard at Montréal, Quebec, on January 29, 2008

Held: I confirm the decision of the Minister of Transport set out in the notice of assessment of monetary penalty. The total amount of $750 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

I. BACKGROUND

 

[1] On August 23, 2007, the Minister of Transport assessed a monetary penalty of $750 against Gian Piero Ciambella, the applicant, for a contravention of section 605.14(j)(i) of the Canadian Aviation Regulations (CARs), pursuant to section 7.7 of the Aeronautics Act (Act).

[2] Annex A of the notice of assessment of monetary penalty states the following:

[Translation]

You have contravened section 605.14(j)(i) of the Canadian Aviation Regulations.

On or about September 10, 2006, at or about 20:02 UTC, near Montréal, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FFRV, a power‑driven aircraft for purpose of day VFR flight that was not equipped with a means for the flight crew, when seated at the flight controls, to determine the fuel quantity in each main fuel tank.

Penalty: $750

[3] On September 26, 2007, Mr. Ciambella filed a request with the Transportation Appeal Tribunal of Canada for a review of the decision of the Minister of Transport. Arrangements were made to hold a review hearing, as provided for in section 7.9 of the Act.

II. LAW

[4] Section 7.7 of the Act reads as follows:

7.7(1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

(2) A notice under subsection (1) shall be in a form prescribed by regulation of the Governor in Council and shall, in addition to any other information that may be prescribed, indicate

(a) the designated provision that the Minister believes has been contravened;

(b) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with any guidelines that the Minister may make for the purpose, to be the amount that must be paid to the Minister as the penalty in the event that the person does not wish to appear before a member of the Tribunal assigned to conduct a review to make representations in respect of the alleged contravention; and

(c) the address at which, and the date, being thirty days after the notice is served or sent, on or before which, the penalty must be paid or a request for a review must be filed.

[5] Section 605.14(j)(i) of the CARs provides the following:

605.14 No person shall conduct a take-off in a power-driven aircraft for the purpose of day VFR flight unless it is equipped with

. . .

(j) a means for the flight crew, when seated at the flight controls to determine

(i) the fuel quantity in each main fuel tank . . . .

III. EVIDENCE

A. Minister of Transport

(1) Jean-Guy Carrier

[6] Jean-Guy Carrier has been an inspector with Transport Canada since 1997 and a pilot since 1972, having accumulated 9 800 flying hours. He was the inspector in charge of the present file, following an incident involving the applicant on September 10, 2006.

[7] Inspector Carrier indicated that a CADORS report (exhibit M-1) described the incident during which the applicant's aircraft, a Cessna 172M registered as C‑FFRV (aircraft), was forced to execute an emergency landing on l'Avenue du Parc in Montréal, causing important damages to the aircraft. The certificate of registration of the aircraft, indicating that it was the property of Publicité Aéro-Gramme Inc., was produced in evidence (exhibit M-2).

[8] On September 15, 2006, Inspector Carrier communicated with the applicant. After having informed him of his right not to answer any questions or submit any documentation, he asked him to forward a copy of the aircraft logbook.

[9] As requested by Inspector Carrier, on September 15, 2006, the applicant sent him a copy of certain pages from the aircraft logbook confirming events surrounding the forced landing on September 10, 2006 and containing a maintenance and service report from Air Quasar Ltée, indicating that on May 4, 2006, an inspection noted that the left fuel gauge placard was unserviceable (exhibit M-3).

[10] The air operator certificate (exhibit M-4) was produced in evidence indicating that Publicité Aéro‑Gramme was the owner of the aircraft (exhibit M-4).

[11] On October 25, 2006, Inspector Carrier met with the applicant who confirmed the incident related to the forced landing on September 10, 2006. He also informed him that he had requested that the aircraft be taken out of service. However, Inspector Carrier was able to confirm with Michel Tremblay of Transport Canada that such a request had not been made (exhibit M-5).

[12] Page 1-2 of Publicité Aéro-Gramme's operations manual was also produced in evidence (exhibit M-6). It confirms that the applicant holds the positions of operations manager, chief pilot and maintenance coordinator within the company.

[13] On November 1, 2005, Inspector Carrier and Chuck Burroughs proceeded to inspect the aircraft and confirmed that the left fuel gauge was unserviceable.

[14] On November 7, 2005, the Minister of Transport issued a letter of notification to Publicité Aéro-Gramme, requesting a declaration from the company by December 7, 2005 that the gauge would be checked and replaced as required (exhibit M-7).

[15] A telephone record was also produced in evidence concerning a telephone conversation on January 24, 2006 between the applicant and Michel Durand of Transport Canada. Further to this conversation, the applicant confirmed, in writing, that the aircraft had been removed from service until all corrective measures recorded on the inspection snag sheet had been completed (exhibit M-8).

[16] Certain pages from a publication by Transport Canada, entitled Small Operator Maintenance Control Manual, which contain specific provisions regarding the corrections of defects found during an inspection, were produced in evidence (exhibit M-9).

[17] A picture taken by Inspector Carrier on November 6, 2006, showing clearly that the left fuel gauge was unserviceable, was produced in evidence (exhibit M-10).

[18] On March 21, 2007, Inspector Carrier had a telephone conversation with the applicant. This conversation that was audio-recorded was produced in evidence (exhibit M-11). During this conversation, Inspector Carrier informed the applicant that according to section 605.14(j)(i) of the CARs, it was illegal to fly without having a means for the flight crew, when seated at the flight controls, to determine the fuel quantity in each main fuel tank. The applicant responded that he was acting in accordance with the regulations, as one gauge was functional and it was sufficient to operate the aircraft.

[19] Inspector Carrier indicated that the aircraft had been certified on type certificate data sheet no 3A12 issued by the Federal Aviation Administration (exhibit M-12).

[20] Certain pages from the aircraft owner's manual, which detail the fuel system design and certain aspects of the aircraft operation, were produced in evidence (exhibit M-13). According to Inspector Carrier, the two fuel gauges are not optional pieces of equipment but rather constitute base items. When a base item is not in working order, the aircraft should not be used.

[21] According to Inspector Carrier, working gauges are essential to ensure continuous readings of the fuel in both tanks. With only one working gauge, the flight crew can never know if the weight is unbalanced or if more fuel is coming from one wing.

[22] During cross-examination, Inspector Carrier confirmed that he could not specify in detail how the fuel system on the aircraft worked, and that exhibit M-9 constituted only certain pages from the Small Operator Maintenance Control Manual.

B. Applicant

(1) Gian Piero Ciambella

[23] The certificate of registration of the aircraft indicates that Publicité Aéro-Gramme has owned the aircraft for more than 23 years (exhibit A-1).

[24] The Cessna Pilot Safety and Warning Supplements (exhibit A-2) explains the fuel management technique related to the aircraft. Other passages of the aircraft owner's manual were produced in evidence (exhibit A-3).

[25] The applicant explained that the aircraft was designed with two fuel gauges and that the second gauge was an extra safety feature. In his opinion, the fuel system, as it appears in the aircraft owner's manual, does not contain two fuel tanks but only one that is linked at the top and the bottom. The fact that it is a communicating vessel ensures that the two gauges always have the same reading.

[26] Two pages from the Publicité Aéro-Gramme's operations manual, relating to the operation of the aircraft, were produced in evidence (exhibit A-4).

[27] The applicant confirmed that, on September 10, 2006, the unserviceable sticker was placed on the left gauge of the aircraft. He also confirmed that when the aircraft is not leveled, the level of fuel in each tank can be different.

[28] During cross-examination, the applicant confirmed that the aircraft owner's manual (exhibits M-13 and A-3) provides that an unequal flow of fuel from one wing may occur. As a result, one wing can become heavier than the other. The applicant agreed with the statement that if both gauges do not read the same, the wing weight will not be the same.

IV. ARGUMENTS

A. Minister of Transport

[29] The Minister argues that he has met the burden of proving all the elements contained in the notice of assessment of monetary penalty, in accordance with section 605.14(j)(i) of the CARs.

[30] The applicant confirmed that, on September 10, 2006, he flew the aircraft over Montréal and that, during the flight, he was the pilot-in-command. He also indicated that during this flight the left fuel gauge was unserviceable.

[31] According to the Minister, the aircraft has two gauges for a reason. He stated that there were contradictions in the applicant's testimony. The applicant indicated that no matter how or where the aircraft was flying, both gauges always had the same reading. However, he later admitted this was not the case.

[32] According to the Minister, the pilot must have a continuous reading from all his instruments at all times. In this case, the aircraft was certified with two gauges. The owner's manual states that these two gauges are not listed as optional, but rather as basic required elements. The Minister argues that nowhere in the owner's manual does it indicate that the second gauge is simply an added safety feature. There are two gauges because there are two main fuel tanks.

[33] With regards to the sanction, the Minister sees grave and aggravating circumstances in the applicant's conduct. The applicant is not only the chief pilot, but he holds the positions of operations manager and maintenance coordinator of Publicité Aéro-Gramme.

[34] The fact that the fuel gauge was unserviceable was discovered in November 2005. The applicant then indicated that it would be replaced as required. Notwithstanding this fact, the aircraft was put back into service after an inspection on May 4, 2006 indicating that the left fuel gauge was unserviceable.

[35] With his many years of experience in aeronautics, the applicant should have known that returning to service an aircraft with such a snag was an offence. Thus, considering all these aggravating factors, the Minister requests that the monetary penalty be increased to $3 000.

B. Applicant

[36] The applicant's position is that the fuel system, as it appears in the owner's manual, does not include two fuel tanks but only one that is linked at the top and the bottom. The fact that it is a communicating vessel ensures that the two gauges always have the same reading. According to the applicant, the fuel tanks are actually one reservoir. He also submits that the term "main tanks" is not used in the owner's manual. In short, there is only one fuel tank and the second gauge is simply an added safety feature. Thus, there is no contravention to the CARs. The applicant also submits that section 605.14(j)(i) does not apply to the aircraft, as the present configuration of the fuel tanks is not contemplated by the CARs which are drafted in general terms.

V. DISCUSSION

[37] Although both witnesses spoke at length about the working of the aircraft's fuel system, neither of them was introduced as an expert in the field of aeronautical mechanics, or more specifically on the design and functioning of the aircraft's fuel tanks and fuel systems. The Tribunal is limited to considering the facts brought forward by these witnesses and cannot give weight to their opinions as to the design and functioning of the fuel system and fuel tanks.

[38] Section 605.14(j)(i) of the CARs provides that the means for the flight crew to determine the fuel quantity in each main fuel tank is a basic requirement which must be satisfied before any person can conduct a take-off. It emphasizes how fundamental this piece of equipment is. Both parties produced in evidence certain pages from the aircraft owner's manual (exhibits M-13 and A-3). The Tribunal emphasizes the following passage at pages 2-1 and 2-3:

FUEL SYSTEM

Fuel is supplied to the engine from two tanks, one in each wing. . . .

Fuel from each wing tank flows by gravity to a selector valve. . . .

. . .

When the fuel selector valve handle is in the BOTH position in cruising flight, unequal fuel from each tank may occur if the wings are not maintained exactly level. . . .

. . .

It is not practical to measure the time required to consume all of the fuel in one tank, and, after switching to the opposite tank, expect an equal duration from the remaining fuel. The airspace in both fuel tanks is interconnected by a vent line (figure 2-2) and, therefore, some sloshing of fuel between tanks can be expected when the tanks are nearly full and the wings are not level.

(emphasis added)

[39] After having considered the information contained in the aircraft owner's manual, and in particular the terms "two tanks", "each wing tank" and "fuel tanks", the Tribunal determines that the manual clearly indicates that the aircraft is equipped with two distinct fuel tanks, each one having its own gauge.

[40] Contrary to the applicant's position, the aircraft owner's manual does not state that the second gauge is simply an added safety feature. There is thus no evidence to support this statement made by the applicant.

[41] Even if the Tribunal were to accept the applicant's position that the two tanks actually constitute one tank, with only one gauge functioning, the flight crew would still only have the means to determine the quantity of fuel contained in half of this single tank. This would still be a contravention of section 605.14(j)(i) of the CARs, which specifies that the flight crew should be able to determine "the fuel quantity in each main fuel tank".

[42] The Tribunal concurs with the Minister that the flight crew must have the possibility of obtaining continuous readings from all required instruments, including the two gauges in the aircraft.

[43] Considering the fact that the aircraft owner's manual states that it is possible to have uneven flows from both tanks, resulting in the fact that one tank may contain more fuel than the other, the necessity of the two gauges becomes even more apparent.

[44] The Tribunal also refers to the applicant's response to the letter of notification (exhibit M‑7), which indicates that the gauge will be checked and replaced as required. Also, further to a telephone conversation with Mr. Durand of Transport Canada, the applicant stated that the corrective measures related to the unserviceable gauge would be completed (exhibit M‑8). The fact that the applicant stated that the gauge would be repaired contradicts his present position that the left gauge is simply an added safety feature that is not required.

[45] The Tribunal concludes that the Minister has proven on the balance of probabilities that, on September 10, 2006, the applicant conducted a take-off of the aircraft without being equipped with a means for the flight crew, when seated at the flight controls, to determine the fuel quantity in each main fuel tank, in contravention of section 605.14(j)(i) of the CARs.

VI. DETERMINATION

[46] The Tribunal concludes that the aggravating circumstances raised by the Minister were known originally when a monetary penalty of $750 was assessed against the applicant. Therefore, there are no new circumstances which would give the Tribunal reason to increase the sanction initially imposed by the Minister. The fact that the applicant argued his innocence with great conviction is not a mitigating circumstance. The Tribunal thus confirms the original monetary penalty of $750 imposed by the Minister.

March 28, 2008

Howard M. Bruce

Member


Appeal decision
Faye H. Smith, Jean-Marc Fortier, Suzanne Racine


Decision: November 4, 2008

Citation: Ciambella v. Canada (Minister of Transport), 2008 TATCE 32 (appeal)

[Official English Translation]

Heard at Montréal, Quebec, on August 20, 2008

Held: The appeal is dismissed. The appeal panel confirms the review determination dated March 28, 2008. The total monetary penalty of $750 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this decision.

I. BACKGROUND

[1] The Minister of Transport alleged that the appellant, Gian Piero Ciambella, has contravened section 605.14(j)(i) of the Canadian Aviation Regulations (CARs). On or about September 10, 2006, at or about 20:02 UTC, near Montréal, Quebec, Mr. Ciambella, as pilot‑in‑command, conducted a take-off of the aircraft registered as C-FFRV, when that aircraft was not equipped with a means for the flight crew, when seated at the flight controls, to determine the fuel quantity in each main fuel tank. The Minister assessed a monetary penalty of $750 against Mr. Ciambella.

[2] Mr. Ciambella appealed the review determination of Member Howard Bruce dated March 28, 2008, confirming the Minister's decision to assess a monetary penalty of $750 for a contravention of section 605.14(j)(i) of the CARs.

II. GROUND FOR APPEAL

[3] In his request for appeal dated May 1, 2008, Mr. Ciambella states that, in rendering his review determination, the member relied on inaccurate information about the Cessna 172. This information was given in the testimony of Inspector Jean-Guy Carrier of Transport Canada.

III. ARGUMENTS

A. Appellant

[4] The appellant has been piloting a Cessna 172 for more than 23 years. In his opinion, this aircraft is not equipped with two fuel tanks, but rather with one main tank divided into two sections interconnected as communicating vessels. Each of those sections is located in one wing of the aircraft.

[5] Mr. Ciambella explains that according to the principle of the communicating vessel, also called Pascal's principle, a liquid filling several vessels connected at their base by a tube will be at the same level in each of the vessels, whatever their shape. On the basis of this law of physics, Mr. Ciambella submits that the level of the left and right fuel gauges will always be the same because the fuel that fills the two interconnected sections of the tank will always be at the same horizontal level. Therefore, in his opinion, only one fuel gauge is required to allow the flight crew to determine the quantity of fuel on each side of the aircraft. In addition, the appellant noted that the fuel gauges on a Cessna 172 are not sufficiently precise to allow the pilot-in-command to determine the actual quantity of fuel in the main tank. He states that on September 10, 2006, he was aware of the number of gallons of fuel in his main tank. 

B. Minister of Transport

[6] The Minister's arguments are as follows:

  • all of the constituent elements of the offence alleged in the notice of assessment for monetary penalty dated August 23, 2007, have been proven on a balance of probabilities;
  • after having assessed oral and documentary evidence submitted at the review hearing, the member made findings of fact. The appeal panel cannot review those findings of fact, unless they are unreasonable or based on a lack of evidence;
  • the member did not attach any weight to the testimonies of Messrs. Carrier and Ciambella regarding the operation of the fuel tanks. Those witnesses were not experts.
  • on the basis of the documentary evidence, the member concluded that this aircraft is in fact equipped with two distinct fuel tanks having to be supplied with their own fuel gauge.
  • the findings of fact reached by the member are reasonable and must be confirmed.

IV. ANALYSIS

[7] The fact that on September 10, 2006, one of the two fuel gauges of the Cessna 172 was not operating is not contested. In addition, the appellant had made a commitment to Transport Canada to have it repaired (exhibits M-7 and M-8).

[8] According to the appellant, it is not necessary for both fuel gauges to be operating for the flight crew of a Cessna 172 to determine the quantity of fuel available. The appellant argues that a single fuel gauge is sufficient to show the approximate quantity of fuel in the aircraft's tank. The Minister's representative argues, on the contrary, that the fuel is contained in two distinct tanks, each of which must have its own fuel gauge.

[9] The member took note of the theories expounded during the oral evidence of the appellant and the Minister's witness, Inspector Carrier. However, he clearly stated in his reasons that he did not give any weight to their opinions on the issue of the number of tanks with which the aircraft was equipped, since neither the appellant nor Inspector Carrier testified before him as experts in that regard.

[10] Accordingly, the member had to base the reasoning for his determination on other evidence to conclude that two fuel gauges were required and determine whether there had been a contravention of section 605.14(j)(i) of the CARs. Under this section of the CARs, no person shall conduct a take-off in a power-driven aircraft for the purpose of day VFR flight unless it is equipped with a means for the flight crew, when seated at the flight controls to determine the fuel quantity in each main fuel tank. The wording of this section therefore sets out the necessity of having a fuel gauge that allows the quantity of fuel in each tank to be determined.

[11] In his determination, the member also states that, in concluding that two fuel gauges are required, he relied on the two following points in the aircraft owner's manual (exhibits M-13 and A-3). "Fuel is supplied to the engine from two tanks, one in each wing…", and "The airspace in both fuel tanks is interconnected by a vent line (figure 2-2) and, therefore, some sloshing of fuel between tanks can be expected…".

[12] Relying on that evidence and the wording of section 605.14(j)(i) of the CARs, the member concluded that the aircraft had to be equipped with two fuel gauges, one for the right wing tank and the other for the left wing tank, with each gauge having its own function to perform. The member's findings of fact are reasonable. The Minister has proven, on a balance of probabilities, all the elements of the offence and his decision must be confirmed. The appellant did not succeed in rebutting this evidence.

V. DECISION

[13] The appeal panel dismisses the request for appeal and confirms the review determination dated March 28, 2008.

November 4, 2008

Reasons for appeal decision: Suzanne Racine, Member

Concurred by: Faye Smith, Chairperson

Jean-Marc Fortier, Member