Decisions

CAT File No. C-1234-41
MoT File No. RAP-6504-C4477-027512

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Gogal Air Service Limited, Respondent

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


Review Determination
Gordon R. Mitchell


Decision: June 28, 1996

That Air Regulation 210(1)(a) has been contravened by Gogal Air Service Ltd. (owner Larry Gogal) and that I confirm the Minister's decision to assess a monetary penalty to the total of $250. This amount is to be payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

A Review Hearing on the above matter was held Friday, June 7, 1996, at 10:30 hours, at the Elk's Lodge, in Snow Lake, Manitoba.

The Notice of Assessment of Monetary Penalty reads as follows:

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):

COUNT #1: Air Regulation 210(1)(a) in that on or about September 22, 1995 at approximately 19:30 hours local time at or near Snow Lake, Manitoba you did unlawfully fly a Noorduyn Norseman MK VI aircraft bearing Canadian Registration Marks CF-ECG while there was not in force in respect of that Aircraft a Certificate of Airworthiness by reason of the fact that the said aircraft was flown in contravention of the Type Approval, ie, said aircraft was flown with an external load consisting of lumber.

THE LAW

Certificate of Airworthiness CF-ECG:

(5) This Certificate of Airworthiness is issued pursuant to the Convention on International Civil Aviation signed at Chicago the 7th December, 1944 and the Air Regulations in respect to the above mentioned aircraft which is considered to be airworthy when maintained and operated in accordance with the foregoing and either the Aircraft Specification or Type Approval, the Weight and Balance Report and Aircraft Flight Manual.

Airworthiness Manual, Chapter 571:

571.1 Applicability

This chapter sets out rules governing the maintenance of:

(a) Canadian registered civil aircraft, other than ultra-light aircraft, operating inside or outside Canada;

(b) Any civil aircraft used under the provision of a Canadian operating certificate, irrespective of the aircraft state of registry; and

571.3 Definitions

(h) "Major modification" means an alteration to an aeronautical product for which a type approval has been issued that, in the opinion of the Minister, may have other than a negligible effect on the weight and balance limits, structural strength, performance, powerplant operation, flight characteristics or other qualities affecting airworthiness or environmental characteristics.

571.203 Repairs and Modifications

(b) Major repairs and major modifications to aeronautical products shall be performed in accordance with:

(1) Data approved by the Minister; or

(2) Other data specified by the Minister.

Airworthiness Manual, Chapter 513, Design Approval: Modification and Repair

Paragraph 3

The content of this chapter is based on the concept that subsequent to the issue of a type approval, a change to the type design of an aeronautical product will result in a deviation from the basic type design. This deviation may be approved when the product, with the modification or repair incorporated, continues to comply with the applicable standards of airworthiness.

Paragraph 5

The issue of a Supplemental Type Approval (STA) signifies that the design data for a modification is approved and the STA forms part of the aeronautical product type design. Where the modification is intended for incorporation in a limited number of products of a type as opposed to all products of a type, the approval document is known as a Limited Supplemental Type Approval (Limited STA) which will replace the existing "one-off" major modification approval. In this regard the term "limited" refers only to the limitation on the serial numbers to which the approval applies and does not signify an operating "restriction" on the modified product. Similarly the issue of a Repair Design Approval (RDA) signifies that the design data for a repair is approved and the RDA forms part of the aeronautical product type design.

513.3 Definitions

(e) "Supplemental Type Approval" means a document issued by the Minister in the name of the holder to record the approval of a change to the type design of an aeronautical product and references the documents and data defining the change in the type design and the limitations and conditions applicable as a result of the design change. Unless otherwise stated, the term Supplemental Type Approval includes Limited Supplemental Type Approval.

OVERVIEW

On September 22, 1995, Constable Christopher Vibe was working his shift from 19:00 to 03:00 hours. He was in the RCMP Snow Lake Division office which is adjacent to the lake shore at Snow Lake. He saw a Norseman floatplane taxi toward the beach to his left, in preparation for take-off; this was at 19:11 hours. The aircraft was carrying an external load of lumber.

The Norseman aircraft turned toward the north and proceeded to take off at 19:15 hours. Constable Vibe took four photos of the aircraft as it passed in front of the RCMP office.

EVIDENCE

The Minister's first witness, RCMP Constable Christopher Vibe, stated that he saw the Norseman aircraft leave the Gogal Air Service dock and head toward the beach. It then turned and took off to the north at 19:15 hours on September 22, 1995. He stated further that the Norseman had an external load of lumber.

When questioned, Constable Vibe said he had been at the Snow Lake Detachment for four years and during that time had seen Gogal Air Service carrying external loads at least a dozen times. The loads varied from lumber, boats, and once he had seen a riding lawn mower carried as external load.

On further questioning, Constable Vibe said that he heard an aircraft land at 22:51. Believing that it was the aircraft he had seen take off at 19:15, he drove down to Gogal Air Service. There was a Norseman there. He took down the registration, CF-GLI, but this was not the Norseman he had seen earlier. This aircraft belonged to Gogal Air Service, but it had not flown on September 22, 1995. The Norseman he had seen earlier did not return that day.

There was some question as to the registration of the aircraft he had seen take off with an external load. The photos he had taken were not clear enough to make out the registration. It was clear that Constable Vibe had taken the registration from the wrong aircraft because he assumed that the Norseman seen earlier had returned and that it was CF-GLI because it was the only Norseman at the dock.

Gogal Air Service owns two Norseman aircraft, one a Mark VI CF-GLI, and this aircraft did not fly on September 22, 1995. The other Norseman, CF-ECG is the aircraft alleged to have been carrying an external load on September 22, 1995.

Constable Vibe stated that there was no question in his mind that the aircraft he had seen taking off with the external load belonged to Gogal Air Service.

Mr. Gogal had no questions for Constable Vibe.

The Minister's second witness, Inspector Dittbrenner, presented the following exhibits:

M-1: Four (3½x5) photos of a Norseman aircraft taking off with an external load.

M-2: Copy of Certificate of Registration and Certificate of Airworthiness for Norseman Mark V, CF-ECG, Serial No. N29-43.

M-3: Copy of Operating Certificate for Gogal Air Service Ltd. with three aircraft listed: Cessna 185, Norseman Mark V and Norseman Mark VI. Certificate No. 5785.

M-4: Copy of three pages of Aircraft Journey Log for Norseman Mark VI, CF-GLI. No flights made on September 22, 1995.

M-5: Five photos clearly showing colour schemes and large letter G on the side of the fuselage of CF-ECG, photo No. 9 and CF-GLI, photo No. 6.

M-6: Copy of three pages of Aircraft Journey Log for Norseman Mark V, CF-ECG, shows two flights on September 22, 1995 – one flight entered as departing Snow Lake at 7:30.

M-7: Copy of three pages of Aircraft Type Approval for Norseman Mark V.

M-8: Copy of four pages from Airworthiness Manual Chapter 571.

M-9: Copy of pages 7-7 and 7-8 taken from Gogal Air Service Flight Operations Manual.

Inspector Dittbrenner related that he had done a search of files relating to the two Norseman aircraft owned by Gogal Air Service and that no Supplemental Type Certificate had been issued for carrying external loads. The original Type Certificate allowed the carrying of canoes only as external load. Inspector Dittbrenner stated that the carrying of any external load other than a canoe would invalidate the Certificate of Airworthiness.

In cross-examination Mr. Gogal questioned Inspector Dittbrenner regarding the photos in Exhibit M-1. He asked if he could identify the external load. The Inspector said yes, that it was a load of lumber. Mr. Gogal questioned the Inspector regarding the photos in Exhibit M-5 as to colours and identification of aircraft shown in photo No. 6, Norseman CF-GLI, and in photo No.9, Norseman CF-ECG.

Mr. Gogal was sworn-in and made a presentation on his own behalf. He put forward one exhibit as follows:

D-l: Copies of two pages from the journey log for Gogal Air Service Cessna 185, C-GEUU.

Mr. Gogal stated that he had flown Norseman CF-ECG with an internal load only and that he had taken off at 7:30 p.m. from Snow Lake. He said that Constable Vibe had referred to a Cessna 185 taking off some 30 seconds ahead of him. The exhibit he presented showed that it was not Gogal Air Service 185, as he pointed out that the last flight for that day shown in the 185 log was at 3:50 p.m.

Inspector Hiscock asked Mr. Gogal if he had been dealt with in the past for omitting entries in the journey logs of his aircraft. He replied that he did not think so. Inspector Hiscock reminded Mr. Gogal that he was under oath and asked if he had been dealt with by the Department of Transport in the last four or five years for not putting entries in his logs when they were checked. Mr. Gogal's answer was, "not that I can remember at this time, unless that you can bring it up to me."

Mr. Gogal conceded that he was flying the aircraft on that flight but denied that he was carrying an external load. He said that, if someone showed him the photos in Exhibit M-1, the aircraft did appear to have something on top of the floats but that it could be anything, anything at all.

Inspector Hiscock asked Mr. Gogal if he had camps and was answered in the affirmative. The Inspector asked Mr. Gogal how he got lumber into those camps, and Mr. Gogal said he flew it in.

Inspector Hiscock asked Mr. Gogal how he hauled lumber with the Norseman, and whether they were all internal loads. Mr. Gogal said he tried to haul all internal loads.

The Inspector asked Mr. Gogal twice if he had hauled lumber externally, reminding him the second time that he was under oath. Mr. Gogal's answer was a single word, "Yes".

CONCLUSION

Mr. Gogal indicated at one point in his testimony that the aircraft in the photos of Exhibit M-1 cannot be identified as a Norseman and that it could even be a Super Cub! At another point Mr. Gogal conceded that he probably was the pilot of this aircraft on take-off from Snow Lake. The journey log for CF-ECG shows a take-off from Snow Lake on September 22, 1995 at 7:30 p.m. and the pilot as L. Gogal.

Mr. Gogal stated that he was not carrying an external load of lumber. Mr. Gogal presented Exhibit D-1, two pages of the journey log for Cessna 185, C-GEUU, which he pointed out shows the aircraft made its last flight on September 22, 1995 at 3:50 p.m. according to the last entry in the log on that day.

During part of Mr. Gogal's testimony one is led to believe that there may have been two strange aircraft flying out of Snow Lake that evening, one a Norseman and the other a Cessna 185. Mr. Gogal made no mention of a Cessna 185 in the area other than his own which was probably tied to his dock as the log shows it did not fly after 3:50 p.m.

Constable Vibe testified that a Norseman aircraft left Gogal's dock, and 30 seconds later a Cessna 185 followed, both taxied south toward the beach in preparation for take-off. The aircraft were hidden from view for a short period because of the trees. He stated that the Cessna 185 took off first, northbound along the east shore in front of the RCMP office at 7:14 p.m. At 7:15 the Norseman aircraft proceeded to take off in the same direction.

The four photos shown as Exhibit M-l provide a lot of information. The first thing noticed was that they were not in their proper order. I have reversed those numbered 2 and 4 as it is apparent from the position of the Norseman in relation to the small island in the background that they are now in proper sequence.

The aircraft pictured is a white Norseman with red trim carrying an external load which is not a canoe. The fact that this is a Norseman aircraft on floats, with an external load, is easy to make out without any visual aid. A l0x power magnifying glass provides verification of this, and more.

There is a large letter "G" on the side of the fuselage just aft of the rear cabin door. This fact can be related to in Exhibit M-5. This shows photos of Gogal Air Service's two Norseman aircraft, CF-GLI and CF-ECG, in close-up detail.

The series of photos in Exhibit M-l show what appears as the wake of a fast-moving watercraft preceding the path of take-off of the Norseman and indicating travel in the same direction.

I suggest fast moving, probably 50 mph or more, because the waves from the wake are very nearly parallel, a definite sign of high speed. A slower moving watercraft leaves a wake that has a tendency to be V-shaped, more so the slower it moves. The watercraft (probably the Cessna 185 referred to by Constable Vibe) went by less than a minute ahead of the Norseman.

The time stated can be estimated by the fact that the waves from the wake separate at approximately 800 ft per minute. The reader may judge this roughly from the dimensions of the Norseman aircraft, wingspan 51¢ 6² and length 32¢ 4². Photo No. 2 shows the wake more clearly than the others. The photos in Exhibit M-1 are taken in the evening. This can be seen by the direction of the light from the sun and the shadows of the trees in the foreground.

Mr. Gogal made no mention of a Cessna 185 taking off ahead of him, whereas Constable Vibe testified that one had. Constable Vibe, on hearing an aircraft land later in the day at 22:51, drove down to Gogal Air Service. Assuming that the Norseman at the dock was the same aircraft as he had seen earlier, he took down the registration of CF-GLI, the Norseman that according to the logs had not flown that day. CF-GLI has white wings and upper fuselage with an orange belly, rudder and elevators.

It is extremely difficult and at times impossible to judge colours on the water. The direction of the major source of light, the direction of the object in relation to that of the viewer and the amount of reflection from the water make one's vision unreliable.

Constable Vibe did make an error in assuming the Norseman at Gogal's dock was the same aircraft he had seen earlier. CF-ECG did not return to Snow Lake on September 22, 1995 according to the journey log.

The evidence that I have heard, read and seen leaves no doubt in my mind that the Norseman floatplane seen in photos shown as Exhibit M-1 is Gogal Air Services Norseman Mk V, CF-ECG carrying an external load which is not a canoe, and further that it is being operated by Larry Gogal in a configuration that invalidates the Certificate of Airworthiness.

I confirm the Minister's decision to assess a monetary penalty of $ 250 for a contravention of paragraph 210(1)(a) of the Air Regulations.

Gordon R. Mitchell
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, Faye H. Smith, Robert J. MacPherson


Decision: February 5, 1997

The Appeal is allowed. The Tribunal finds that Gogal Air Service Ltd. did not contravene paragraph 210(1)(a) of the Air Regulations and dismisses the assessed penalty of $250.

An Appeal Hearing on the above matter was held before three designated Tribunal Members, Monday, December 9, 1996 at 10:00 hours at the Federal Court, in the city of Winnipeg, Manitoba.

BACKGROUND

Gogal Air Service Ltd. is appealing the Review Determination made by Mr. G. Mitchell on June 28, 1996.

In the determination at the first instance, the Tribunal member upheld the Minister's allegation to the effect that paragraph 210(1)(a) of the Air Regulations had been violated.

The ground for appeal submitted was:

  • that he did not carry an external load on any aircraft on September 22, 1995.

ARGUMENT

In oral argument the Appellant illustrated that there had been significant difficulty in the identification of the aircraft flown in the alleged offence.

The transcript revealed that, although the RCMP constable initiating the investigation claimed to be familiar with Gogal Air Service aircraft, he failed to properly identify the aircraft which he photographed. This mistake was not discovered until the development and return of the photos. It took a subsequent investigation by Transport Canada to identify the aircraft in question.

As well the movements of the aircraft as described in the transcript were not consistent with those movements inscribed in the journey logs of those aircraft.

The Appellant wished to raise additional issues that he asserted would illustrate more discrepancies and possibly impugn the credibility of the witnesses. The Tribunal did not accept these arguments and explained that it would be improper to consider such issues as the appeal was confined to the merits based on the record of the proceedings of the member of the Tribunal from whose determination the appeal is taken.

The discrepancies lead the Appellant to believe that the constable must have mistaken the day in question, and thus the Appellant appeals that he did not fly an aircraft with an external load on the day specified in the count, and therefore the member's findings should be overturned.

The Respondent, Transport Canada, provided a written "MAIN SUBMISSION" which included II. Introduction, III. Key Facts, IV. The Law and V. Argument. The Appeals Officer was also engaged in oral submission upon questioning by the Tribunal.

An overview of Transport Canada's written argument was provided at page 2 of the submission.

... the Member's findings of fact and credibility were not unreasonable. The Minister's representative proved all the elements of the offence and defences raised were not proven on a balance of probabilities. The hearing was conducted in accordance with the principles of fairness and natural justice.

Transport Canada argues that for these reasons the Member's decision should be upheld.

FINDING OF FACTS

The written submission addressed "KEY FACTS" at paragraphs 7 to 15. It is of interest to review some of them in light of the argument that such findings were not unreasonable.

Submission, page 4, paragraph 11:

The member made a finding that on the evidence there is no doubt in his mind that the Norseman floatplane seen in photos shown as Exhibit M-1 is Gogal Air Service's Norseman Mk V, CF-ECG carrying an external load which is not a canoe, and further that it is being operated by Larry Gogal in a configuration that invalidates the Certificate of Airworthiness.

Submission, page 4, paragraph 12:

Transcript, pages 30, 32

Mr. Dittbrenner testified that failure to have supplemental type approval would render the Certificate of Airworthiness not in force. (Emphasis added)

Submission, page 5, paragraph 15:

Evidence was presented regarding the Certificate of Airworthiness and that it was not in force due to the fact that the aircraft supplemental type approval had not been applied for. (Emphasis added)

Submission, page 4, paragraph 13:

The Aviation Inspector, Mr. Dittbrenner testified that the external load fell within the definition of a major modification because it affects the airworthiness of the aircraft ... (Emphasis added)

Submission, page 5, paragraph 15:

By very definition in the Airworthiness Manual, the carrying of an external load is a major modification ... (Emphasis added)

The foregoing cannot be findings of "Fact" because they are inconsistent and contradictory.

Paragraphs 11, 12 and 15 all address whether or not the Certificate of Airworthiness is in force. At 11 it is the operation in a configuration that invalidates the Certificate of Airworthiness; at 12 it is the failure to have a Supplemental Type Approval; at 15 it was the fact the Supplemental Type Approval had not been applied for.

Paragraphs 13 and 15 address "major modification". At 13 the external load fell within the definition of a major modification, whereas at 15 the carrying of an external load is a major modification.

Had the member made the foregoing as finding of fact it would have been unreasonable due to the contradictory nature of such findings. However, although these "facts" appear in the Respondent's argument, a perusal of the transcript noted above shows that his finding was limited to that stated at page 4, paragraph 11.

THE LAW

Transport Canada's view of the law is presented in the submission from paragraphs 16 through 22.

The basis is that the Appellant violated paragraph 210(1)(a) of the Air Regulations, (paragraph 17) which provides that "No person shall fly or attempt to fly an aircraft ... unless there is in force in respect of that aircraft a certificate of airworthiness ... and unless all conditions upon which the certificate of airworthiness, the flight permit or the validation for flight was issued are complied with."

Transport Canada cites the conditions found upon the Certificate of Airworthiness. These standards of Airworthiness are found in the Airworthiness Manual which is published pursuant to subsection 211(1) of the Air Regulations.

Transport goes on to cite various sections of Chapters 571 and 513 of the Airworthiness Manual as applicable to the issue.

The gist of Transport's argument, utilizing the foregoing "law" is that there was no Certificate of Airworthiness in force. The Certificate was not in force because the aircraft was flown with an external load, which was not authorized in the Type Approval. The evidence given by Transport and the line of reasoning in the law cited goes on to assert that the external load carried constituted a "major modification" as is defined in Chapter 571 of the Airworthiness Manual.

Such a "major modification" to an aeronautical product (aircraft) shall be performed in accordance with data approved by the Minister or other data specified by the Minister. The issuance of a Supplemental Type Approval, pursuant to Chapter 513, signifies that the data is approved by the Minister. In this case, Transport says, there was no Supplemental Type Approval issued, hence the "major modification" was not approved. Therefore the Certificate of Airworthiness was not in effect.

Critical to this line of reasoning is that an external load is a "major modification" as described in Chapter 571 of the Airworthiness Manual. If it is not a "major modification", the line of reasoning fails. However, the "facts" also state that it is the carrying of the load that is the modification. The evidence in the transcript sometimes suggests that the carrying of the load is a major modification, and sometimes it suggests that the load itself is the major modification. Surely the external load is an object, while the carrying of the load is a dynamic. A definition of carrying is "to take from one place to another" (Oxford Dictionary). Can it be said that the taking of an object from one place to another is a major modification? To accord a practical point of view to the issue, I believe that Transport must view the external load as the modification (Transcript p.25, 26 Q90).

Discussion of Chapter 571 of the Airworthiness Manual begins at page 24 of the Transcript. The Case Presenting Officer Hiscock refers to Chapter 571 and asks what the document has to do with the matter. In answer Inspector Dittbrenner says:

This chapter sets out rules governing the maintenance of Canadian Registered Civil Aircraft ... (Emphasis added)

At page 25 Mr. Dittbrenner provides a definition of major modification:

Means an alteration to an aeronautical product for which a Type Approval has been issued that in the opinion of the Minister may have other than a negligible effect on the weight and balance limits, structural strength, performance, power plant operation, flight characteristics or other qualities affecting the airworthiness or environmental characteristics.

Through leading questioning by the Case Presenting Officer, during direct examination, Mr. Dittbrenner agreed that the carrying of an external load fell into the definition of a major modification. He agreed that it affected the airworthiness of the aircraft by centre of gravity, by flying characteristics, and he also stated that it would have an effect on the aerodynamics of the aircraft (Transcript page 25).

Mr. Dittbrenner is a Regulatory Investigator with the Aviation Enforcement Branch of Transport Canada and was an Aircraft Maintenance Engineer with a licence category M4 prior to that. He was not qualified as an expert before giving testimony.

We note that the Appeals Officer in her Main Submission refers to testimony of expert witnesses at section 5 on page 16, third paragraph:

In making out its case, the representative of the Minister called a number of expert witnesses whose evidence regarding the potential danger of flying with an external load was clear and basically unchallenged.

The Appeal Panel could find no expert witness testimony and no evidence of the alleged potential danger referenced above in the record of the review proceeding, and we take issue with such cavalier misstatement of the evidence. We have no doubt that the use of expert witness testimony in this case would have been of assistance in clarifying the issues.

Further testimony is given relating the provision of Chapter 571 to requirements for testing and approval found in Chapter 513 (Design Approval: Modification and Repair), specifically to the requirement to obtain a Supplemental Type Approval.

When one reads only the excerpts provided in the exhibits and follows the explanation in the transcript, there seems to be a logical flow. However, when one reads the pertinent chapters as a whole, it becomes apparent that those provisions are inapplicable to the case at hand.

Chapter 571 of the Airworthiness Manual

571.1 Applicability

This chapter sets out rules governing the maintenance of:

(a) Canadian registered civil aircraft, ... (Emphasis added)

It is pertinent to note that Chapter 571 is devoted to maintenance. Maintenance is defined in Chapter 501 of the Airworthiness Manual:

"Maintenance" means the preservation of an aeronautical product in a fit and safe condition for flight and, where applicable, in compliance with its approved design standard, and includes repair, overhaul, inspection, modification, and the replacement of parts, but does not include servicing. (Emphasis added)

This definition makes clear that modification is included as maintenance.

The concept of modification as maintenance is consistent in the chapter as can be shown by its further use:

Paragraph 571.5(d):

The certificate of airworthiness of an aircraft is not in force if the aircraft or its required equipment has been repaired, modified, or otherwise maintained in a manner, or by using parts or materials, not in accordance with the requirements of this chapter. (Emphasis added)

The contents of the entire chapter address maintenance.

This concept is again reinforced by Air Navigation Order, Series II, No. 4 – Order Respecting Conditions and Procedures for keeping a Certificate of Airworthiness.

Air Navigation Order, Series II, No. 4:

(2) "maintenance" means the act of

(...)

(b) restoring an aircraft including components and appliances thereof to an airworthy condition,

and includes servicing, repairing, modifying, overhauling, inspecting and determining the airworthy condition of the aircraft including components and appliances thereof. (Emphasis added)

Major modification is defined at paragraph 571.3(h):

"Major modification" means an alteration to an aeronautical product for which a type approval has been issued that, in the opinion of the Minister, may have other than a negligible effect on the weight and balance limits, structural strength, performance, powerplant operation, flight characteristics or other qualities affecting airworthiness or environmental characteristics.

This is the definition which Transport Canada relies upon to transform an external load into a major modification, but it must be read in the context of being maintenance. Can it be said that the carrying of an external load is maintenance? Is the external load itself maintenance? When viewed in this manner, it becomes clear that this section does not apply in this circumstance.

However, if Transport Canada is correct in its application, then one would have to proceed further:

571.203 Repairs and Modifications

(...)

(b) Major repairs and major modifications to aeronautical products shall be performed in accordance with:

(1) Data approved by the Minister; or

(2) Other data specified by the Minister.

Transport Canada asserts that the effect of this provision is to require a Supplemental Type Approval for the external load (Transcript page 26).

The Preamble to Chapter 513 states:

Chapter 513 of the Airworthiness Manual contains the procedures for the issue of a Supplemental Type Approval ... and includes the privileges and responsibilities which are associated with holding such approvals. (Emphasis added)

Further it states at the fifth paragraph:

Where the modification is intended for incorporation in a limited number of products of a type as opposed to all products of a type, the approval document is known as a Limited Supplemental Type Approval (Limited STA) ...

Transport Canada asserts that a Limited STA is required (Transcript pages 30, 31).

There are consequences that flow from the issue of an LSTA, and there are issues to be noted in formalities of application. Specifically, one must address the holder, the eligibility, the application and basis for approval as well as the privileges and responsibilities that ensue. In regard to these issues one must ask if they apply to the case at hand as Transport Canada declares.

513.3 Definitions

(a) "Holder" means the individual or organization whose name is recorded as the holder on any form of Supplemental Type Approval or Repair Design Approval.

513.7 Eligibility

Any individual or organization that controls a design (hereinafter referred to as the applicant) may apply to the Minister for a Supplemental Type Approval. (Emphasis added)

  • Note that the applicant, who will become the holder, upon a successful application, is, as a matter of eligibility, required to "control a design".

Once a "holder" privileges and consequences ensue. Airworthiness Manual Advisory (AMA) 513/5 April 23, 1990 addresses "Privileges, Responsibilities and Obligations of Holders of Approvals." The preamble to Chapter 513 advises that:

Airworthiness Manual Advisories are issued to provide advice and guidance for complying with the procedures set out in this chapter.

AMA 513/5 states:

... Canadian holders of STAs are required to have a system, as described in Chapter 591, for reporting any failure, malfunction or defect.

Airworthiness Manual, Chapter 591 Service Difficulty Reporting

Reporting at 591.5 provides that "the holder" of a supplemental type approval shall report any reportable service difficulty to the Minister. Further sections address the time frame and details of such reports.

It can be seen that the entire process and procedures from the inception at Chapters 571, 513 and including Chapter 591 are detailed and complex. Can it be fairly said that this myriad of detail applies to each flight wherein an operator attaches an external load to an aircraft?

The attachment, by whatever means, of an external load to an aircraft may very well have other than a negligible effect on the centre of gravity, flying characteristics and aerodynamics of the aircraft. But, to form a "major modification" under Chapters 571, 513, the attachment of load would have to be construed as "maintenance" which has the meaning of "preservation of an aeronautical product in a fit and safe condition for flight" (Chapter 501). We are unable to appreciate how Transport Canada comes to the conclusion that the attachment of an external load was a major modification in the sense it was "preservation of an aeronautical product in a fit and safe condition for flight".

The panel believes Transport Canada has misconstrued the appropriate provision. The practical effect of Transport Canada's argument would be to prevent the carriage of external loads on aircraft. Had that been the legislator's intent, it would have been simple to say so. They did not. In fact, a practical solution is found in the legislation in the form of Part II, Chap. I, Section 1.6 of the Engineering and Inspection Manual. This provision is brought into issue by Transport's Exhibit M-9 and questions of Inspector Dittbrenner P 30-32 Q 105-115.

Subsection 211(1) of the Air Regulations allows the Minister to publish both an Airworthiness Manual and an Engineering and Inspection Manual. (E & I Manual). Transport Canada submits that only the Airworthiness Manual applies.

Part I and some sections of Part II of the E & I Manual had been subsumed into the Airworthiness Manual at the time of the alleged offence (E & I Manual amendment 32, April 5, 1990). Part II, Chap. I, Section 1.6 of the E & I Manual remained in force at the time of the allegation (September 1995).

The chapters of the Airworthiness Manual which Transport Canada purports to apply to the allegation were formerly Section 1.10 Maintenance, Section 1.11 Repairs, Section 1.2 Modifications of the E & I Manual.

Part II, Chap. I, Section 1.6 is still in effect and specifically addresses airworthiness requirements for seaplanes with external loads. As the allegation was that Gogal Air Service Ltd. flew a seaplane that carried an external load, which rendered the Certificate of Airworthiness not to be in force, why would Transport Canada not rely upon that section?

When engaged in oral questioning on the issue, the Case Presenting Officer acknowledged that section 211 of the Air Regulations allowed the publication of both an Airworthiness Manual and an Engineering and Inspection Manual. However, she pointed out that the section provides that in the case of a conflict between them the Airworthiness Manual shall prevail (211(1.1)(b)). She was not able to convince the Tribunal that a conflict between the two existed. We find that there is no conflict in the sense that the sections are in opposition; they simply address differing subjects.

  • An analysis of that section reveals its application to the issue.

Part II, Chap. I, Section 1.6 of the E & I Manual reads as follows:

General

1.6.1 Aircraft types, which have been certificated in the normal category are eligible, for D.O.T. Approval for the carriage of external loads when compliance is shown with the requirements of Paras. 1.6.2 through 1.6.10. Aircraft so approved must be operated in accordance with approved Aircraft Flight Manual or other approved documents when carrying external loads.

The wording of section 1.6 is broad enough to encompass more than canoes. It addresses "external loads". At 1.6.2, regarding weight, mention is made of both "canoes" and "freight".

The requirements of 1.6.2 through 1.6.10 include such items as, maximum weight (1.6.2) flight qualities within the range of centre of gravity and weight for which approval is sought (1.6.4). Stability, in relation to its other flight characteristics, performance, operating conditions (1.6.5), controllability (1.6.6 to 1.6.9) and data required for approval (1.6.10) (Emphasis added).

The testimony of Inspector Dittbrenner at pages 25 and 26 of the transcript was previously discussed. He states that the carrying of an external load must be a major modification because it affected the airworthiness of the aircraft by centre of gravity, by flying characteristics and its effect on the aerodynamics.

Section 1.6 addresses all his concerns without the leap of logic required to allege that an external load is a major modification to the aircraft.

It can be seen that 1.6 applies to the circumstances in issue without the overreaching necessary for the application of Airworthiness Manual 571, 513, 591.

A comparison to extracts from the Canadian Aviation Regulations (CARS), may be instructive although such regulations were not in effect at the time of the incident. The carriage of external loads is addressed in the context of Commercial Air Service Standards, 722 – Aerial Work which is defined at subsection 101.01(1) as:

"aerial work" means a commercial air service other than an air transport service or a flight training service;

Section 702.45 of the CARS is entitled: "External Load Equipment". It states:

No air operator shall operate an aircraft carrying an external load unless the attachment device is authorized in a supplemental type certificate or in an airworthiness approval relating to the operational configuration of the aircraft. (Emphasis added)

At section 722.01 Application, which provides the standards for section 702, definitions are given:

"Attaching Device" means the structural components of the aircraft used to attach an external load to an aircraft.

"External Load" means a load carried externally by an aircraft.

Clearly it is the "Attaching Device", being a structural component of the aircraft, which is required to be authorized in a Supplemental Type Certificate, not the external load itself.

The requirement, in the CARS, for the attaching device to be authorized in a Supplemental Type Certificate can be compared to the provision in the Aircraft Type Approval, where the canoe carrying installation (i.e. Attaching Device) is found under Equipment at paragraph 4 (Exhibit M-7).
i.e. – the attachment device is part of the Type Approval.

The carriage of external loads is also addressed at Part VII, Subpart 3 – Air Taxi Operations, Division III – Flight Operations. Section 703.25, Carriage of External Loads states:

Except where carriage of an external load has been authorized in a type certificate or supplemental type certificate, no air operator shall operate an aircraft to carry an external load with passengers on board.

Clearly this provision would allow the carriage of an external load in absence of either a type certificate or supplemental type certificate as long as no passengers were carried.

The application of the E & I Manual is also revealed through Exhibit M-9 and the transcript (p.30, 31).

Exhibit M-9 is an extract from Gogal Air Service Flight Operations Manual, section 7 regarding "FLIGHT PREPARATION FOR EXTERNAL LOADS FOR FLOAT EQUIPPED CESSNA 185". The Flight Manual addresses the requirements of paragraphs 1.6.2 through 1.6.10 of the E & I Manual.

The manual states that reference should be made to "Part 2, Chapter 1, Sec. 1.6 of the E and I Manual", and that all employees will be familiar with Section 1.6.1 through 1.6.10 of that manual. Further under the heading TYING OF EXTERNAL LOADS it states: "All external loads are to be tied in at least two places to side of aircraft (gear legs)" – This indicates the lack of attachment device as the load is being attached directly to the aircraft.

This exhibit is addressed at page 30, 31 of the transcript (Q105-111). When Inspector Dittbrenner is asked "Now does that page in that document authorize him to carry external loads on a 185", he answers "This, in this document yes it does."

109

Q. Without anything else happening? This gives you general conditions, it says if you haul external loads you have to do it this way?

A. Right.

However with further questioning the Inspector added a caveat.

110

Q. How would you get authorization to haul those external loads in a 185?

A. Well for the Cessna 185, it's original type certificate doesn't come with... Does not come with an approval to carry external loads. So; therefore, one must get a Limited Supplemental Type Approval in order to carry external loads.

111

Q. So even though there is a procedure set up in the manual on how to carry an external load, you would still need a supplement in order to do it?

A. You would still need a Supplemental Type Approval to do so, yeah.

We do not understand how the Inspector came to this secondary conclusion in light of the language of Part II, Chap. I, Section 1.6 which states at 1.6.1:

General

1.6.1 Aircraft types, which have been certificated in the normal category are eligible, for D.O.T. Approval for the carriage of external loads when compliance is shown with the requirements of Paras. 1.6.2 through 1.6.10. Aircraft so approved must be operated in accordance with approved Aircraft Flight Manual or other approved documents when carrying external loads.

This provision clearly states the need for compliance with paragraphs 1.6.2 through 1.6.10, not compliance with data for an LSTA.

A review of Exhibit M-9 shows that the criteria previously mentioned that are listed in the Flight Manual are the requirements of paragraphs 1.6.2 through 1.6.10 of the E & I Manual.

The Inspector's assertion is more puzzling in light of the requirement of the conditions of the Flight Manual to be approved.

The sequence is clear:

  • Compliance with the requirements of paragraphs 1.6.2 through 1.6.10 must be shown for approval to carry external loads;
  • Then a/c so approved must be operated in accordance with an approved Flight Manual.
  • Exhibit M-9, Gogal Air Service Flight Operations Manual pages 7-7, 7-8 bears a D.O.T. stamp dated October 24, 1985. It is then an approved Flight Manual. To become approved Gogal must have submitted data to the Chief of Airworthiness (E & I, 1.6.10). The data must have been approved, as it is now in the approved Flight Manual.

If Transport Canada is correct, it is left in the anomalous position of having approved a Flight Manual with instructions on how to attach an external load to an aircraft which is not allowed to carry external loads.

CONCLUSION

For reasons which are not readily apparent, Transport Canada chose to apply the airworthiness standards of Chapters 571, 513 to the issue rather than the provisions of Part II, Chap. I, Section 1.6 of the E & I Manual.

The panel finds that the airworthiness standards that Transport would apply are inapplicable in the circumstances. The external load did not constitute a "major modification" in the context of Chapter 571 of the Airworthiness Manual for reasons previously stated. As the load was not a "major modification" no STA was required. There was no resultant invalidity of the Certificate of Airworthiness for the reasons which Transport Canada ascribe.

It may be that an approval for an external load was required under Part II, Chap. I, Section 1.6 of the E & I Manual as proposed by the Appeal Panel, but that has not been asserted by the Minister, and evidence related to that issue was not before the Tribunal.

DETERMINATION

In the result, the Tribunal finds that Gogal Air Service Ltd. did not contravene paragraph 210(1)(a) of the Air Regulations and dismisses the assessed penalty of $250.00.

Reasons for Appeal Determination by:

Al Ogilvie, Vice-Chairperson

Concurred:

Faye Smith, Chairperson
Robert MacPherson, Member