Decisions

CAT File No. C-1354-33
MoT File No. RAP-6504-P-124530-028502

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Leo Larry Hiebert, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, ss. 7.7, 7.9(2)
Air Regulations, C.R.C. 1978, c.2, s. 218(c)

Unsecured Cargo


Review Determination
Robert L. Mortimer


Decision: May 9, 1997

The Minister's allegation is confirmed. The monetary penalty of $500.00 shall be made payable to the Receiver General for Canada and forwarded to the Civil Aviation Tribunal within fifteen days following service of this determination.

A Review Hearing on the above matter was held Tuesday, April 29, 1997 at 13:00 hours at the City Hall in the city of Prince Albert, Saskatchewan.

BACKGROUND

A Notice of Assessment of Monetary Penalty was forwarded to Mr. Larry Hiebert from Mr. D.J. Peever, Regional Director, Prairie and Northern Region, Transport Canada, on September 6, 1996. The Notice 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 218(c) in that, at approximately 2130 local hours on July 13, 1996, at or near Selwyn Lake, Saskatchewan, being the pilot-in-command of a DeHavilland DHC-3 aircraft bearing Canadian registration marks C-FSGD, you did unlawfully operate the aircraft when the equipment and cargo carried on board was not secured so as to prevent shifting in flight.

The total assessed penalty of $500.00 must be paid on or before October 11, 1996...

As the monetary penalty was not paid by the specified date, the Civil Aviation Tribunal issued a Notice of Review Hearing on February 6, 1997.

HEARING PROCEEDING

Neither the document holder, Mr. Hiebert, nor his counsel, Mr. Irwin Carson, appeared for the hearing at 13:00 hours. After it was confirmed by Mr. Carson's office that he would not be attending, the hearing commenced at 13:20 hours in accordance with subsection 7.9(2) of the Aeronautics Act to hear the Minister's presentation on the alleged contravention.

THE LAW

Paragraph 218(c) of the Air Regulations states:

218. No person shall fly or attempt to fly any aircraft unless

(...)

(c) the equipment and any cargo carried are secured so as to prevent shifting in flight and are not so placed as to block or restrict the exit of passengers in an emergency;

EVIDENCE

The Case Presenting Officer for the Minister of Transport, Mr. Brown, called as a witness Inspector Richard Gagnon of Aviation Enforcement, Central Region, Transport Canada. Mr. Gagnon testified that on July 13, 1996 he was at Selwyn Lake, Saskatchewan as part of an annual surveillance program. At approximately 21:20 hours he watched a float aircraft land on the lake. The aircraft was C-FSGD and the pilot-in-command was Mr. Leo Hiebert.

Inspector Gagnon stated that when the cargo door of the aircraft was opened he observed several articles in the cargo compartment that were not properly secured to the aircraft. The main item was a large chest freezer sitting inside the door unsecured, in addition to which a number of cartons of beer and other supplies were on the left side of the cabin forward without being secured in any way.

Mr. Gagnon also observed three 205-litre gasoline drums on the right side of the cabin which were secured with a single rope. In addition, several small unsecured items were under the pilot's seat. Mr. Gagnon spoke with Mr. Hiebert about the matter of an unsecured load, subsequent to which C-FSGD departed Selwyn Lake at 22:25 hours.

Exhibit M-1 is the Central Region Conformity Check form and notes related to Inspector Gagnon's observations about C-FSGD on July 13, 1996. Exhibit M-2 is a copy of the Certificate of Registration for C-FSGD. Exhibit M-3 is a copy of the Aircraft Journey Log and Daily Flight Report for C-FSGD on July 13, 1996, showing Mr. Hiebert as the pilot-in-command on that date.

Exhibit M-4 is a series of three photos of the cargo on board C-FSGD taken at the site by Inspector Gagnon. They show the unsecured freezer in the doorway, unsecured cartons of beer and other supplies on the left side of the cabin floor, and three fuel drums on the right side of the cabin floor secured by a single rope to the cabin wall. Two ropes that had not been used for securing the cargo are also seen in the photos of the aircraft's cabin, but no other cargo nets or ropes were observed by Mr. Gagnon. He confirmed the pictures accurately depicted what he had seen in the cabin of C-FSGD on July 13, 1996.

ARGUMENT

Mr. Brown stated he had established that the aircraft observed by Inspector Gagnon at Selwyn Lake on July 13, 1996 was C-FSGD, and the pilot-in-command was Mr. Hiebert. He had also shown that a chest freezer and a number of cartons of supplies were on board the aircraft without being secured to prevent their shifting in flight, and that the three fuel drums were not adequately tied down in the aircraft. He maintained this failure to properly secure the load violated aviation safety and paragraph 218(c) of the Air Regulations.

CONCLUSION

The evidence presented by Mr. Brown is compelling. Without any form of a tie down or other means of securing them in place, the freezer and the cartons would be susceptible to turbulence or other forces which could have caused them to move while the aircraft was in flight. The security of the fuel drums, although tied with a single rope, would appear to be questionable. In the absence of any countering evidence or argument from Mr. Hiebert, I find that paragraph 218(c) of the Air Regulations was contravened by Mr. Hiebert as alleged.

DETERMINATION

The Minister's allegation and the monetary penalty of $500.00 are confirmed.

Robert L. Mortimer
Member
Civil Aviation Tribunal