Decisions

CAT File No. C-1169-33
MoT File No. RAP-6504-P352412-027043

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Glen William Lockey, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s.8.3
Air Regulations, C.R.C. 1978, c.2, ss. 101(1), 534(2)(b)

Low Flying


Review Determination
Ken Clarke


Decision: February 28, 1996

I find Mr. Glen William Lockey contravened paragraph 534(2)(b) of the Air Regulations. I therefore confirm the Minister's Assessment of a Monetary Penalty of $500.00. Payment must be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within fifteen days of the receipt of this determination.

A Review Hearing on the above matter was held Tuesday, February 20, 1996, at 10:00 hours at the Red Lake Inn in the city of Red Lake, Ontario.

BACKGROUND

Inspector Hanson was on the dock of a fishing lodge conducting a surveillance operation at a remote lake on the morning of July 23, 1995. A Noorduyn Norseman was observed to land near another lodge located just under an estimated one mile to the west. A few minutes later, the same aircraft departed westward and made a climbing right turn of approximately two hundred and thirty-five degrees. After levelling at an estimated three hundred feet, the aircraft descended and flew low near a fishing boat. The boat was estimated at 1,800 feet from the inspector. Investigation of the event led to the minimum allowed Assessment of Monetary Penalty.

The Notice of Assessment of Monetary Penalty reads in part:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Air Regulation 534(2)(b), in that, at approximately 07:32 hours on July 23, 1995 at or near Trout Lake, Ontario, you did unlawfully fly a Noorduyn UC64AS aircraft bearing Registration Marks C-FJEC at an altitude of less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

(. . .)

The total assessed penalty of $500.00 must be paid on or before November 22, 1995 . . .

It was determined that no pre-hearing conferences, agreements or other matters took place or needed to be brought to my attention.

APPLICANT'S EVIDENCE

Inspector Hanson was identified as the observer of the alleged violation. He described his flying experience, and most vividly detailed the events of the morning of July 23, 1995. A resourceful place mat map was introduced as Exhibit M-1 and was followed by a two-part scale and map labelled Exhibit M-2.

Referring to the maps, it was shown that the inspector was on at the most southwesterly bay of an island. The southwestern tip of the island formed a narrows of an estimated 1,500 feet with a mainland peninsula. From this tip the island and mainland shores diverged northward. The flight path, boat and lodge dock were marked.

At approximately 0710 (7:10 a.m.) a Norseman float plane landed at a lodge midway west between the mainland and the inspector. At the same time a fishing boat was making its way toward the narrows. About fifteen minutes after landing, the aircraft departed toward the west, becoming airborne quickly. A climbing right turn of approximately 235° and a levelling altitude of an estimated 300 feet followed. A descent then commenced, and a gentle turn was made toward the boat. Inspector Hanson remarked that he looked back and forth at the boat and aircraft and thought "oh no."

Being experienced in low flight violations, he started looking at various references. Knowing what was about to happen, considerable mental note was made.

It appeared that the aircraft flew directly over the boat at about 30 feet. Wingspan and boat length were referred to in the estimated height of the Norseman. Two persons were seen to be aboard the boat. After passage of the boat on a southeasterly heading, the Noorduyn made a shallow climb as it went out of sight behind trees. The aircraft was painted in Sabourin Airways colour scheme and thought to be the only one of that colour.

Later in the day Inspector Hanson landed at the Sabourin float base and noticed the same Norseman aircraft there. Inquiries were made about the pilot and the flights of the plane that day. A copy of the appropriate page of the Journey Log was made and today entered as Exhibit M-3. Times, date, destinations and load were coincident with the earlier observations.

On August 20, 1995, Inspector Hanson had an opportunity to meet and speak with Mr. Lockey. Mr. Hanson stated that it was not necessary to converse. Mr. Lockey then advised that he had been "off to the side" and passed "150 to 200 feet" from the boat. During the conversation, Mr. Lockey had been very cooperative.

On January 30, 1996, a photograph entered as Exhibit M-4 was taken of the area of concern at Trout Lake. Measurements showed the narrows to be approximately 1,500 feet, 1,800 feet from the dock to where overflight had occurred, and just less than one mile from dock to point of departure.

CROSS-EXAMINATION

Under cross-examination, Inspector Hanson confirmed that he had a few hours in type; he did not consider himself a Norseman pilot.

RESPONDENT'S EVIDENCE

Mr. Lockey testified that he had difficulties with the conversation of August 20, 1995. He said that he had misunderstood the question about low flight. It was thought to mean low by the lodge and not low over the boat. A boat from a lodge other than the one he worked for would be of no interest to himself. Passage of the lodge was said to be by more than 500 feet. Flight through the narrows had been to avoid the lodge.

Temperatures had been in the 90 to 100 degree range "those days." Wind was noted as 12 to 15 knots. Unlike many Norsemen, this aircraft was metal skinned on the fuselage. Although still legal, the prop was high time (understood to mean the propeller was approaching overhaul time). The aircraft was reported to fly similarly when loaded or unloaded and to be a "bit of a dog." Reference to flying characteristics in comparison to Beavers and Otters was made.

Two maps were received as Exhibit D-1. The flight path and boat location were marked on the exhibit.

Mr. Lockey said that, once airborne, getting the nose down for cooling was necessary. Engine temperatures were close to the red line. Retracting the flaps caused the aircraft to descend. This aircraft of 1947 design was then flown through the narrows at midpoint, with the boat passing off the left side. Although the destination of Joyce Lake is almost due east, flight over the trees, hill and lodge of the island was avoided.

Entered as Exhibit D-2 was a letter from Mr. Booi. An objection was raised by Inspector Hiscock to the acceptance of the letter dated August 13, 1995. A discussion by all parties took place. It was noted that the letter would be received but given due weight, as it was not sworn evidence. Mr. Booi is the owner of the lodges at departure point and destination. He claimed to have been a witness to the boat passage.

Mr. Lockey attempted to enter paragraphs 534(6)(a) and (b) of the Air Regulations; however, only after a current issue had been supplied and reviewed was this regulation received as Exhibit D-3.

534(6) A person may, over non populous areas or over open water, fly an aircraft at a lower altitude than that specified in paragraph (2)(b) where

(a) the flight is conducted without creating a hazard to persons or property; and

(b) except for an aircraft operated in accordance with subsection (4) or (5), the aircraft is not flown at a distance less than 500 feet from any person, vessel, vehicle or structure.

Mr. Lockey said that he had complied with the above regulation. Measurements by the Respondent indicate 800 to 900 feet between the boat and himself. Further he believed the boat was about 1,500 feet from Inspector Hanson. The boat was closer to Cat Island than indicated by the Minister. A reading of subsection 101(1) of the Air Regulations by Mr. Lockey was presented:

"taking off", in respect of an aircraft, means the act of abandoning a supporting surface and includes the immediately preceding and following acts and . . .

He was taking off according to Mr. Lockey.

CROSS-EXAMINATION

Under cross-examination, Mr. Lockey agreed that the metal-covered Norseman was actually lighter than the all-fabric models. However, he said that he was not sure whether it was the rigging wings or what, but the performance had been changed. It was revealed also that the engine was the same as used in an Otter, and that the Norseman should be compared with the Otter rather than the Beaver. Questions regarding cooling techniques followed. Completion of the take-off phase of flight was next explored, and agreed that it was complete.

Mr. Lockey stated that he considered the conversation with Inspector Hanson to be a bad one. He said he was nervous and had not "investigated" the matter.

The temperature at that time of day was next explored. Mr. Lockey then admitted that he could have been 800 to 1,000 feet as he went by the boat. As destination was very close, it did not meet his needs to seek such performance. The turn was downwind. Pushing the nose down was natural. It was also appropriate to stay over water and away from the lodge on Cat Island.

APPLICANT'S SUMMATION

Inspector Hiscock summarized by providing interpretation of section 534 of the Air Regulations, the Minister's responsibilities, and those of the pilot. He went on to describe offence categories. It was suggested that due diligence had not been exercised as the pilot had numerous options according to the Case Presenter. Furthermore, a voluntary statement by Mr. Lockey regarding distance from the boat corroborated the observation of Inspector Hanson. On a balance of probabilities, it was felt, the case had been proven. The amount of the penalty is the minimum allowed in this situation.

A final word cited several fatal accidents over the past few years where low flight diverted the pilot's attention when it should have been otherwise.

RESPONDENT'S SUMMATION

Mr. Lockey described the departure of the flight in question. He said that, while avoiding Cat Island and remaining over the water at all times at a relatively low altitude, he maintained airspeed, temperature and visibility. Procedure was to remain over water as much as possible as well as keeping the temperatures down and the visibility up. The boat was noticed and was passed with the vessel off to the left. After speaking with Inspector Hanson and discovering the narrows to be about 1,800 feet, the conclusion was that the boat was passed by about 900 feet. The straight on sighting by the observer would tend to "bunch things up." Again Mr. Lockey stated he was very nervous when speaking to the investigator. Until he himself investigated further, he did not realize what was being said. "In that situation (the conversation with Inspector Hanson) my judgement of distances was fairly poor." The distances were considered safe however. A final comment was that the boat was assumed to be from Cat Island Lodge, and that having a competitor upset with his customer would not be desirable. Mr. Lockey believed he was at least 500 feet.

ANALYSIS

Of significance is Inspector Hanson's proximity to the overflight. His experience too is a consideration. Certainly the very nature of that experience well qualifies him to assess distances. The "oh no" comment is indicative of impending consequence of concern. The ability to anticipate the event and commence early reference to landmarks is noteworthy.

The flight paths and boat location marked on maps submitted by the Applicant and the Respondent are similar, with only enough variances to be legal or illegal. Careful study of all maps leads me to believe that Inspector Hanson was best able to determine positions with greatest accuracy. With the relatively short distances involved, I do not consider the illusion of "bunching up" to be a factor. Even using the route depicted by Mr. Lockey, and considering the proximity of the boat depicted by Inspector Hanson, there would only exist approximately 100 feet between an infraction and not. It has been testified however, that flight was directly over the boat. Had the Norseman been off to the side, then the distance would have been proportionate to the height given.

I find it remarkable there was a requirement for descent when it occurred. It may have been more prudent to land if engine temperature was that critical under the given conditions. As discussed, other techniques were available to keep temperatures within the normal range. Except for a change to groundspeed and illusions created by drift, I do not accept the wind as significant.

Regardless of certification timeframe or date of manufacturing, an airworthy aircraft can be expected to perform as specified in the limitations.

Regarding the letter from Mr. Booi, it is exactly that. Unfortunately it is not a sworn affidavit or testimony. There existed no opportunity to cross-examine his information. He was also almost one mile away. Although he mentions binoculars being used in the past, he does not say that they were used in this instance. I accept his information as presented, but do not consider it to have the same strength as Inspector Hanson's evidence.

With regard to paragraphs 534(6)(a) and (b) of the Air Regulations, I do not see a defence, only conditional requirements. If it were found that Mr. Lockey was more than 500 feet from the boat, the allegation would be dismissed.

Subsection 101(1) of the Air Regulations is dismissed, as the flight was no longer in the take-off phase of flight. In fact once the flaps were retracted and the power reduced, the enroute climb had been entered. After levelling, the cruise phase came about. When a descent commenced, yet the next legal phase had begun.

I can understand any nervousness of Mr. Lockey, but he was advised, which he acknowledged, that he was not required to make a statement. The statement of passing the boat by 150 to 200 feet is by itself an admission of infraction.

There is no contest regarding pilot or aircraft identification.

DETERMINATION

Considering all evidence presented, and on a balance of probabilities, I find Mr. Glen William Lockey contravened paragraph 534(2)(b) of the Air Regulations and therefore confirm the Minister's Assessment of Monetary Penalty of $500.00.

I draw Mr. Lockey's attention to section 8.3 of the Aeronautics Act which he may find to be of benefit in due course.

I thank all participants for their meaningful presentations.

Ken Clarke
Member
Civil Aviation Tribunal