CAT File No. C-1865-41
MoT File No. RAP5504-C754-033185 (P)
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Skyward Aviation Ltd., Respondent
Aeronautics Act, R.S., c. 33 (1st Supp) s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 704.18
Maintenance control system, Expert witness
William Thornton Tweed
Decision: August 24, 2000
The Minister did not prove on a balance of probabilities that the nylon grommet was in place at the time of the accident and that the riser was not chaffed. The Respondent therefore did not violate section 704.18 of the Canadian Aviation Regulations as alleged. The penalty of $12,500 assessed by the Minister is cancelled.
A Review Hearing on the above matter was held Tuesday, April 11, 2000 at 10:00 hours at the Federal Court of Canada in Winnipeg, Manitoba.
The Minister subpoenaed Michael Mathieu, an investigator appointed pursuant to sections 9 and 10 of the Canadian Transportation Accident Investigation and Safety Board Act (CTAISB Act), requesting that he appear and give evidence before this Tribunal.
Mr. Peter Hildebrandt, counsel, brought a motion on behalf of the Transportation Safety Board of Canada (TSB) and Mr. Mathieu asking that the subpoena be quashed.
Mr. Hildebrandt argued that section 32 of the CTAISB Act: "Except for proceedings before and investigations by a coroner, an investigator is not competent or compellable to appear as a witness in any proceedings unless the court or other person or body before whom the proceedings are conducted so orders for special cause" applied and that there is no "special cause" pursuant to which I could order his testimony. I agreed with him. There is nothing "special" about these circumstances. The investigator's evidence is not needed to get all relevant evidence before this Tribunal. All of the evidence is available from other sources.
The TSB report was admitted without objection as a public document. The question, therefore, is how much, if any, weight can I give to the information contained in the report.
Section 33 of the CTAISB Act reads: "An opinion of a member or an investigator is not admissible in evidence in any legal, disciplinary or other proceedings." I cannot therefore rely on any portion of the report that expresses an opinion of the investigator.
On the question of weight to be given to any observations set out in the report, given the Respondent had no opportunity to cross-examine the investigator and test his observations, little if any weight can be given to the observations.
On July 24, 1998 at 12:15 mountain daylight time (MDT), a Cessna Citation 500 C-FSKC registered to and operated by Skyward Aviation Ltd. (Skyward) was destroyed following an aborted take-off at Rawlins, Wyoming. The flight crew sustained minor injuries. There were no passengers on board.
The cause of the accident is not an issue before this Tribunal. The USA National Transportation Safety Board (NTSB) determined that the flight crew used an inappropriate table to calculate lower V1, VR and V2 speeds than were required at the time and place of the intended take-off.
After the flight crew decided to abort the take-off, the drag chute was deployed, it inflated, provided a momentary deceleration, and then separated from the aircraft.
Following the initial investigation, the US accident investigators with the concurrence of the TSB released the wreckage to the owner and the owner's insurer. Neither the American nor the Canadian investigators expressed any interest in the failure of the drag chute. Mr. Behrendt, President of Skyward, arranged for the removal of the drag chute mechanism and the relevant section of the fuselage for investigation. He was concerned that a device that his corporation purchased and installed to improve safety had failed in a circumstance where it may have helped. Skyward sent the drag chute mechanism and the relevant sections of the airframe to the TSB for examination.
The TSB subsequently returned the parts and provided a report (Exhibit M-4) which I referred to earlier. Mr. Behrendt reviewed the TSB report and compared it with the physical evidence. He was of the opinion the conclusions may not have been accurate and, but for some burnt material he removed during his own investigation, sent the same material to R. J. Waldron & Company (1987) Ltd. for further examination and investigation. Mr. George Heath of that corporation carried out the investigation, gave testimony to this Tribunal, and prepared a written report that has been admitted into evidence as Exhibit R-23.
The Minister issued a Notice of Assessment of Monetary Penalty on July 14, 1999 alleging that Skyward contravened:
Canadian Aviation Regulation 704.18, in that at approximately 2212 hours MDT, on or about the 24th of July, 1998, at or near Rawlins Municipal Airport, Rawlins, Wyoming, being an air operator, you did permit a person, namely Greg McMaster, to conduct a take-off in an aircraft, to wit, a Cessna 500 bearing Canadian registration marks C-FSKC, that had not been maintained in accordance with your maintenance control system, more specifically, the drag chute riser was chaffed and the bulkhead hole through which the said drag chute riser runs was not fitted with the required grommet, Cessna part number MS21266-2N.
To succeed, the Minister must prove that the drag chute riser installed in the aircraft at the time of the accident was chaffed and that the nylon grommet was not installed. The Minister produced no admissible evidence in support of either allegation. There was only speculation.
If I am wrong, and I should have given the TSB report weight, my decision would not have changed. The report does not persuade me; there is nothing to substantiate the suggestion that there should have been "shadowing" if the grommet was installed. Further, the suggestion that the severed riser and the "chaffing" on the exemplar riser lines up with station 332 is not supported. The investigator did not install the riser in the mechanism and measure the relative location of the severed riser and the exemplar riser with the drag chute canister and the fuselage parts.
The Minister advanced the position that the packing and the installation of the drag chute was not "elementary maintenance" and should not have been performed by a pilot. This issue was not before the Tribunal, and I make no finding in that regard.
The evidence of Mr. Gemmel, a pilot, was that he was the last person to pack and install the drag chute. He testified that he inspected the chute and the risers and found them to be in good condition prior to installation. He specifically stated that the riser did not exhibit any chaffing at the time it was installed.
Mr. Gemmel advised the Tribunal that he had prior experience skydiving and that he had received training from Skyward on the packing and installation of the chute. He described for the Tribunal how he inspected, packed and installed the chute. He indicated no tools were required to accomplish the installation. He also indicated that he does not recall whether or not the nylon grommet was installed at station 332 at the time he installed the chute.
There was no evidence to suggest that there was pre-existing damage to the riser, that the chute was either incorrectly packed, or that the canister was improperly installed.
A July 5, 1998 entry in the aircraft technical log book (Exhibit M-11) confirms Mr. Gemmel packed the drag chute. An entry of the same date indicates an aircraft maintenance engineer (AME) licence #M105641 performed some work on the aircraft and would have been aware that the drag chute was re-packed and re-installed in the subject aircraft.
On July 11, 1998, an "event #3" and "Phase 7" (M-11) inspection was completed and signed by the same AME. The extract from the maintenance manual (Exhibit M-30) under section B requires that a general inspection of the areas surrounding the drag chute be performed. The AME was not called to testify and there was no evidence to suggest that the inspection had not been properly carried out or that the required nylon grommet was not in its proper location at that time.
There was also hearsay evidence of a representative of Saskatoon Aircraft Rebuilders Ltd. who carried out the modification (Exhibit M-7) to the aircraft. This representative apparently confirmed that the grommet was installed at the time the modification was carried out. This evidence was not challenged.
The Minister pointed out that there was a piece of metal protruding beyond the surface area where the grommet was to be fitted. The evidence was that this particular piece of metal would have made the installation of the grommet more difficult and that the grommet was therefore likely not installed. This is an inference I am not prepared to make. The Minister went on to suggest that the protruding piece of metal was the likely source of damage to the riser that lead to failure. The evidence of Mr. Heath clearly demonstrated that the failure of the drag chute riser originated at a point aft of station 332. He demonstrated that the failed section of the riser does not line up with station 332 but that it lines up perfectly with the forward opening in the drag chute canister.
The Minister also suggested that the protruding piece of metal was an improper installation of the drag chute modification. If that is the case then the proper Respondent is the approved maintenance organization (AMO) that carried out the modification and certified that the work had been performed to the applicable airworthiness standards. Assuming the grommet was in place (and there is no evidence to suggest that it was not), the protruding metal would have been covered by the grommet and not visible to an AME or anyone else performing a routine inspection. The owner of the aircraft is entitled to rely on the certification of the AMO that performed the work. Nothing in the regulations requires the owner to disassemble work done and certified by an AMO to ensure that the work was performed correctly. The owner's obligation is to carry out the prescribed inspections.
The Tribunal had the benefit of the expert testimony of Mr. George E. Heath of R. J. Waldron & Company (1987) Ltd. His evidence was clear, thorough and unimpeached. His methods of investigation were clearly set out and supported. I accept his conclusions:
- That the riser failed at the location of the opening in the canister, after being partially cut during a high energy deployment.
- That the fire in the area of the drag chute canister was of sufficient intensity to consume the nylon grommet without leaving any evidence of its existence.
The Minister did not prove on a balance of probabilities that the nylon grommet was in place at the time of the accident and that the riser was not chaffed. The Respondent therefore did not violate section 704.18 of the Canadian Aviation Regulations (CARs) as alleged.
The reason for the CARs is flight safety, the idea being that the imposition of the regulations by the Minister on operators of aircraft will ensure a minimum acceptable level of safety. The owners and operators also have a vested interest in flight safety given their personal exposure to the consequences of accidents. In this circumstance both the US NTSB and the TSB of Canada concluded their investigations without making any attempt to determine why the drag chute, an add-on safety device designed to decelerate the aircraft in an emergency, failed. An investigation was carried out by the owner at its expense. The result of that investigation was the discovery of a problem that should be a concern of other operators of similar aircraft and the Minister. What happened was that the operator was put to significant expense for bringing a safety concern to the attention of the Minister. In the circumstances, had I the jurisdiction, I would order costs against the Minister as suggested by Mr. Barnsley.
William T. Tweed
Civil Aviation Tribunal
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