Decisions

CAT File No. C-1824-60
MoT File No. 136272

CIVIL AVIATION TRIBUNAL

BETWEEN:

Captain Lloyd Andrew Brodersen, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)b)

PPC, Reprogramming of MDCU, Pilot proficiency check, Disclosure


Review Determination
Philip D. Jardim


Decision: May 8, 2000

Captain Brodersen unsuccessfully completed his pilot proficiency check on April 23, 1999. I confirm the decision of Captain Massie to assess a "fail."

A Review Hearing on the above matter was held at the Federal Court of Canada in Winnipeg, Manitoba at 10:00 hours on Friday, April 28, 2000.

BACKGROUND

On April 23, 1999, Captain Brodersen underwent a pilot proficiency check (PPC) in an A320 simulator. The result of that PPC was that Captain Brodersen was assessed a "fail" on Part 4B, which was the VOR non precision approach. The Air Canada check pilot, Captain John Massie, made the following remarks: "4b - failure to adequately manage aircraft during non precision managed approach - reverted to 'selected', resulting in destabilized approach." "Note - ift not completed."

As a result of this assessment, Captain Massie, the check pilot, recommended that Captain Brodersen undergo some additional training prior to re-sitting his PPC. This was accomplished, and Captain Brodersen subsequently passed his PPC approximately one week later, and resumed normal flying duties.

Captain Brodersen feels that this assessment was unfair and applied to the Tribunal for this Review Hearing, in order to remove this "failure" from his record. He said that he returned to active flying duties shortly after April 23, and has since flown over 500 hours in the ensuing year.

Disclosure: Captain Brodersen says that he did not receive the disclosure package, which Mr. Pratt says that he faxed to him. This package consisted of some 30 pages. I asked Captain Brodersen whether he wished to proceed with this hearing as he would need to know the details of the Minister's case. He agreed to proceed, since it seems that he is familiar with all of the documents to which the Minister will be making reference. Mr. Pratt had some copies made, and as each exhibit was presented, I asked Captain Brodersen if he was aware of it. He nodded approval and did not raise any objections to any of the documents.

This hearing has been pending for many months. It was originally scheduled to be heard in Vancouver on December 14, 1999. It was postponed at that time at the request of Captain Brodersen.

It is noteworthy that at that time, Captain Brodersen was to have been represented by Counsel, Captain Andrew Wilson, who has since withdrawn from the case. Today, Captain Brodersen represented himself.

THE LAW

Paragraph 7.1(1)(b) of the Aeronautics Act states:

7.1 (1) Where the Minister decides

(...)

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

(...)

the Minister shall, by personal service or by registered or certified mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister's decision.

EVIDENCE

Mr. Pratt reviewed the particulars of the case from the Minister's point of view and called Captain John Massie, the Air Canada check pilot, as his witness. Eight exhibits were tendered in the course of Captain Massie's evidence, and Captain Massie and Mr. Pratt spoke to each one of them as they applied to the PPC ride done by Captain Brodersen on April 23, 1999.

Exhibit M-1 is the Flight Test Report, Pilot Proficiency Check.

Exhibits M-2 and M-3 are Captain Massie's notes in written form, supported by a graphic presentation of the flight paths followed by the aircraft on two attempts at the VOR approach at Ottawa runway 14. Approach plates and runway diagrams, with lighting information also form a part of these exhibits. Highlights from these exhibits follow:

Captain Massie briefed Captain Brodersen that as part of his PPC he was required to perform one fully managed non precision approach, as part of script PPC-B1, valid April 1, 1998 - September 30, 1999 (Exhibit M-4).

Captain Brodersen was briefed NOT to rush and to take the normal time to complete all necessary items to ensure a safe operation.

Captain Brodersen made some errors during the setup and briefing for the approach:

  1. He did not question the F/O's (first officer) tuning of the wrong NDB to cross check the passage of approach fixes AVTOR and BACES. Had the DME failed, they would not have been able to establish passing these fixes. (The F/O had tuned the "Oscar" beacon instead of the "3U" beacon - see approach plate.)
  2. He did not brief the F/O that, unusually, the DME would be counting the distance "UP" instead of "DOWN" as the aircraft approached the runway, since the VOR station is located away from the field and behind them.
  3. Captain Brodersen misread the approach chart, stating that the crossing altitude at BACES would be 2,000 feet. To facilitate a stabilized approach, and provide the A320 aircraft with a continuous descent profile, Air Canada has raised the FMS altitude at BACES to 2,800 feet.

The aircraft was cleared to 3,000 feet and given a vector to intercept the VOR/DME 14 approach. The captain called for flap 1 and armed the approach by pushing the "APP" button. The aircraft intercepted the lateral track normally but because FINAL mode can only be intercepted from the FMGC defined altitude of 2,800 feet, the aircraft remained at 3,000 feet.

In summary, there was confusion as to why the aircraft was not descending, and as the aircraft proceeded along the inbound track, it never achieved the proper glide path.

Captain Brodersen proceeded to a "selected" approach, but by this time the aircraft was too high to achieve the desired 3-degree glide slope.

Captain Brodersen ended up disconnecting the autopilot, as the runway loomed into sight at 800 feet above ground level, with the PAPI (precision approach path indicator) lights showing all white (meaning that the aircraft was very high). In the ensuing short final approach and landing, the sink rate was over 1,300 feet per minute, 500 feet above the ground, causing the GPWS to sound: "sink rate" five times. The aircraft landed 1,000 feet past the normal touchdown point, although well within the confines of the long runway, apparently without recourse to excessive use of reverse thrust or brake.

Captain Massie was also concerned that the captain did not acknowledge verbally to the co-pilot on hearing "sink rate" from the GPWS, and continued his steep approach.

Captain Massie decided to give the crew a second attempt to carry out a "managed" VOR approach. He set the simulator up appropriately and they departed runway 14 with a clearance direct to VOGIL at 5,000 feet. Due to incomplete programming, the aircraft was unable to enter a "Dir To" VOGIL. After a few minutes they were able to insert the approach by activating the secondary flight plan and going direct to VOGIL. Instead of requesting a "hold" to give them time to re-establish programming, they decided to carry out another "selected" approach instead of a "managed" approach as required by the script.

The captain selected 2,000 feet on the FCU instead of 2,800 feet, and descended "IDLE OPEN," (both engines throttled right back) to cross BACES at 2,000 feet. The descent continued "IDLE OPEN" to cross AVTOR at 1,500 feet. A flight path angle of 3 degrees was maintained at this point to the runway. On the VOR passage, the captain diverged somewhat to the left as the VOR indication went full scale. However, horizontal tracking was generally good.

Captain Brodersen made multiple errors on these two approaches:

  1. He did not demonstrate a proper "managed" approach on either of the two attempts.
  2. He did not brief the approach procedure properly on either attempt (wrong crossing altitude at BACES).
  3. He allowed the F/O to set up the navigation facilities incorrectly.
  4. He did not demonstrate the proper procedure to establish the aircraft on the vertical portion of the approach.
  5. He did not use the proper procedures to regain the profile when he was high. Air Canada's SOP 3.03.12 P2 describes the procedure.
  6. He allowed the aircraft to slow while descending, thereby exacerbating the problem of being high on the approach. It is not recommended to slow the aircraft while descending if it is considered to be too high on the approach.
  7. He did not demonstrate proper crew management techniques by not acknowledging an excessive sink rate at low altitude at night.
  8. By continuing the approach, instead of going around on a missed approach, he discounted the possibility of windshear (CFIT).
  9. He allowed himself to be rushed on both approaches.
  10. He did not follow SOPs and perform a go-around as noted on page 3.03.14 PG 1. - A go-around shall be performed if the aircraft is not stabilized on the approach path and in the landing configuration by 1,000 feet in visual conditions.
  11. He had difficulty in programming the FMGC after the second take-off.

The Approved Check Pilot Manual (ACP)[1] requires as follows:

6.9 Assessment Standards

[...]

6.9.4 [...]

A sequence shall be rated Unsatisfactory if:

a) it endangers the airplane, passengers or crew;

[...]

c) multiple errors are made in the completion of any one exercise;

[...]

e) the aim of the exercise is complete but there is a major deviation from standard procedures or practices or the safety of the airplane was jeopardized;

f) the candidate required continual prompting or help from other crew members to complete task;

[...]

h) the candidate demonstrates unsatisfactory knowledge of airplane systems, equipment, or procedures.

[...]

6.10.9 Instrument Approaches

[...]

Some errors common to all Instrument Approaches that may affect the rating of the exercise are:

[...]

c) incorrect selection of radio aids or failure to properly identify facilities;

d) descent below procedure turn altitude too early or too late;

[...]

f) unable to properly program the FMS for the type of approach;

g) not sure when to leave last assigned altitude for transition, initial, or procedure turn altitude when cleared for the approach;

[...]

q) airplane not in a position to land due to lateral or vertical misalignment or too high an airspeed at DH, MDA or on turning final from a circling procedure;

[...]

b) arriving over the FAF on final too high and/or fast;

c) reaching MDA too late;

d) failure to establish the correct MAP;

e) inability to program and fly a managed or VNAV approach as appropriate to the airplane type; [...]

(Emphasis added)

[...]

6.10.19 Crew Coordination

[...]

a) failure to complete duties as described in company SOPs;

[...]

c) failure to heed warnings of other crew members [GPWS?];

[...]

i) tendency to deviate from SOPs when workload increases.

There are other extracts from Air Canada's SOPs, and publication "550" which are also pertinent and contained in Exhibit M-2.

Exhibit M-4, the script for this PPC, also contains the requirements for this PPC ride. This was the subject of a preflight briefing given to Captain Brodersen by Captain Massie. Highlighted sentences, paragraphs and phrases are particularly applicable to this flight.

Exhibit M-5 is an extract from the A319/320 Flight Crew Operating Manual (FCOM) and contains pertinent highlighted sections appropriate to non-precision managed approaches and visual approaches which Captain Brodersen was required to do for this PPC.

Exhibit M-6 is an extract from the Air Canada 550 manual, which contains pertinent extracts concerning GPWS activation, briefing requirements for peculiar or unusual approaches, such as VOR/DME RW14 OW, where the DME counts UP as the runway is approached on final, rather than DOWN.

Exhibit M-7 gives a graphic presentation of GPWS performance, with radio altitude plotted against sink rate. This shows how the GPWS was activated as the aircraft descended at over 1,300 fpm 500 feet above the ground on short final on the first landing.

Exhibit M-8 shows the procedures for resetting to FMGS.

Captain Brodersen replied to my queries that he was familiar with all of these publications and exhibits, as they were presented.

Mr. Pratt concluded the Minister's case.

CAPTAIN BRODERSEN'S EVIDENCE

Captain Brodersen was duly sworn, with Captain Massie still in the witness box, Mr. Pratt expressed displeasure with this as he found it confusing. The reason for allowing the hearing to take this course was that Captain Brodersen expressed some concern at first cross-examining Captain Massie and then giving evidence. In an effort to make him more comfortable, I agreed to allow the hearing to take this course as I saw no disadvantage to the Minister's side in so doing. Captain Brodersen read a prepared statement, which was in the form of a letter he had written to his former Counsel, Mr. Andrew Wilson, dated September 27, 1999.

In this statement, Exhibit D-10, Captain Brodersen in essence agreed with the sequence of events as described by the Minister. However he took issue with Captain Massie that after the first attempt at the unsuccessful VOR approach, it was NOT his responsibility but Captain Massie's to reprogram the MDCU (multipurpose display and control unit) with the new aircraft weights, etc. before he commenced the second approach.

Captain Brodersen cross-examined and took issue with Captain Massie that it was the company check pilot's (CCP) responsibility to do this. He claims that the aircraft weight is always programmed into the system by flight dispatch, and that the pilots do not usually perform this task. As Captain Massie had "frozen" the simulator, enabling another approach to be made, it was, he contended, Captain Massie's responsibility to program the MDCU. Further, Captain Brodersen contended that he had responded to the F/O's prompt when the GPWS had sounded: "sink rate." - "Correcting."

At this stage I asked Messrs. Pratt and Massie to show me where it is written as to whose responsibility it is. They replied by referring me to Exhibit M-2 page 4 which is an extract from the ACP Manual, section 6.10.9, Instrument Approaches, Non-Precision Approaches: "inability to program and fly a managed or VNAV approach as appropriate to the airplane type". Further, they referred me to the script, Exhibit M-4, which is the order of duties for the PPC, page 3: "On each subsequent leg, obtain your ATC clearance then complete all programming."

Mr. Pratt in redirect to Captain Massie asked him to confirm that he had briefed Captain Brodersen appropriately, as set forth in the ACP Manual and the script. Captain Massie replied that he had. He further said that Captain Brodersen had not asked him for the weights, nor had he contacted flight dispatch for them. He could have found out and programmed them into the system by requesting a hold, but this was never done. This is why a managed approach was not done on the second approach, as the required data was not in the MDCU, and Captain Brodersen had to revert to a selected approach.

Mr. Pratt further asked Captain Massie whether headsets were worn in the simulator - yes they are. It was possible that as a result, Captain Massie may NOT have heard Captain Brodersen tell the F/O "Correcting."

Captain Brodersen called Captain Dominic Morini to the stand as a witness on his behalf. Captain Morini was NOT present on the flight, but Captain Brodersen asked him to state his experience with PPCs and whose responsibility it is to program the computer. Captain Morini was giving evidence as a colleague of Captain Brodersen's and NOT as an expert witness. Captain Morini has flown both the A320 and the A340 since 1992 and has done many IFR renewal and PPC rides. He testified that the check pilot normally advises what parameters to enter into the MDCU, to establish weight, centre of gravity, etc.

In cross-examination of Captain Morini, Mr. Pratt questioned him as to whether he would take off without the required information being programmed into the MDCU. Captain Morini said he would not, and on further prodding by Mr. Pratt said that, had he been in the same position as Captain Brodersen, he would have gone into a hold to program the MDCU.

Captain Brodersen then tendered a letter he had received from F/O Blake Murphy, dated June 10, 1999 as Exhibit D-11. In this letter, F/O Murphy describes what took place during the PPC. Mr. Pratt took issue with this letter, in that, he said, it was not sworn evidence, but rather "hearsay" and that F/O Murphy was not present to give sworn evidence. I agreed. The letter, however, serves to confirm what transpired and contains no contentious information, which contradicts anything that has already been covered and confirmed at this hearing.

I advised Captain Brodersen that he should have arranged for F/O Murphy to be present at the hearing, if he felt that he could be a material witness to his case. Captain Brodersen acknowledged this and said that it was not possible for F/O Murphy to be here today. I said that I would have to treat the letter accordingly.

Captain Brodersen concluded his testimony by referring back to Exhibit D-9, which is an extract from the ACP Manual. He had highlighted paragraphs 6.6.2, 6.6.3 and 6.6.5. These paragraphs are under the general heading: "Tolerances and Assessment Guidelines". It is his contention that the PPC ride be assessed as a PASS, with the non precision approaches being assessed as SB - satisfactory with briefing. He claims that because Captain Massie had not terminated the PPC after the first approach, and had invited him to do a second approach, he should have marked it SB according to this section of the manual.

He was vigorously cross-examined by Mr. Pratt who went over the details of the two approaches, and the faults observed. They reached an impasse on the question of whose responsibility it is to program the MDCU. Captain Brodersen maintained that the aircraft weight is normally given and that he did not think that he had to ask for it; he assumed that the check pilot had programmed it into the MDCU when he "froze" the simulator and invited him to do another "managed non precision approach." Captain Brodersen declared that his testimony was ended. At this stage I invited both parties to collect their thoughts and to give their summaries.

Mr. Pratt reiterated the Minister's position that the assessed failure had been proven, and that the candidate had failed to adequately manage the aircraft as stated on the Flight Test Report.

Captain Brodersen admitted that there was a problem with the first approach. He maintains that he was not given a fair chance at the second approach, as the MDCU should have been programmed by Captain Massie, or that he should have been given the weights and centre of gravity data to program the system. Without this, he contended, he could not do a managed approach.

DETERMINATION

The weight of evidence as to the details of Captain Brodersen's PPC, and its presentation by Captain Massie make it difficult to see why Captain Brodersen should have been assessed SB on his execution of the non precision approach. I have endeavoured to try to see it his way, but I can only say that, if anything, Captain Massie was "accommodating" in allowing him a second chance, after the first effort where he came very close to compromising the safety of the aircraft. He might well have terminated the PPC right there. Even Captain Brodersen admits that it was a very marginal performance.

In the matter of whose responsibility it was, or is, to reprogram the MDCU, at the very least, Captain Brodersen should have demonstrated his awareness that this needed to be done. He could have asked the check pilot to do it, or enquired of him what the necessary parameters were, and taken the time to see that the information was programmed into the system. Both the script and the ACP Manual make it clear that it is the candidate's responsibility to program the system.

Captain Brodersen must accept that he had a bad day, and despite his otherwise unblemished record, over 15,000 hours, this PPC on April 23, 1999 will have to remain as assessed by Captain Massie as a "fail." I find that Captain Massie was more than fair in allowing him a second chance to redeem himself.

At the conclusion of this Review Hearing before me today, I have determined that Captain Brodersen unsuccessfully completed his PPC on April 23, 1999. I confirm the decision of Captain Massie to assess a "fail."

Philip D. Jardim
Member
Civil Aviation Tribunal


[1] TP 6533E, 6th Edition/Revision 1 - June 1998.