Decisions

CAT File No. C-1921-33
MoT File No. RAP5504-P085565-033711 (P

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Alan Robert Zaroski, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.86(1)(b)

Failure to appear at hearing, Carry-on baggage, Cargo


Review Determination
Faye H. Smith


Decision: March 1, 2000

I conclude that the Minister has proved the above-mentioned contravention on a balance of probabilities and I confirm the assessed penalty in the amount of $250. This amount is to be made 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 Thursday, February 10, 2000 at 10:00 hours at the Federal Court of Canada, 363 Broadway, Winnipeg, Manitoba.

BACKGROUND

On May 17, 1999, the Respondent was the pilot of a De Havilland DHC-3, bearing Canadian registration marks CF-CBA which landed at Bissett, Manitoba. The aircraft carried passengers and cargo.

By Notice of Assessment of Monetary Penalty dated September 30, 1999, the Respondent was assessed a monetary penalty of $250 for an alleged infraction of paragraph 602.86(1)(b) of the Canadian Aviation Regulations (CARs). 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):

Canadian Aviation Regulation 602.86(1)(b), in that at approximately 1900 hours UTC, on or about May 17, 1999, at or near Bissett, Manitoba, you did operate an aircraft, to wit, a Dehavilland DHC-3, bearing Canadian registration marks CF-CBA with carry-on baggage and cargo on board, when the carry-on baggage and cargo was not restrained so as to prevent them from shifting during movement of the aircraft on the surface and during take-off, landing and in flight turbulence.

As the monetary penalty was not paid in full by the specified date, the Civil Aviation Tribunal issued a Notice of Review Hearing on December 20, 1999.

REVIEW HEARING

Mr. Zaroski did not appear for the hearing at 10:00 hours on February 10, 2000. After confirming with the Tribunal Registry that no communication had been received from Mr. Zaroski, the hearing commenced at 10:20 hours in accordance with subsection 7.9(2) of the Aeronautics Act.

THE LAW

Paragraph 602.86(1)(b) of the CARs reads as follows:

(1) No person shall operate an aircraft with carry-on baggage, equipment or cargo on board, unless the carry-on baggage, equipment and cargo are

[...]

(b) restrained so as to prevent them from shifting during movement of the aircraft on the surface and during take-off, landing and in-flight turbulence.

THE EVIDENCE

The Case Presenting Officer for the Minister of Transport, Mr. Holbrook, called two witnesses, Mr. E. Dittbrenner and Mr. R. Gagnon. At the time of the alleged infraction, Mr. Dittbrenner was employed as an Inspector in the Aviation Enforcement Branch of Transport Canada in Winnipeg, Manitoba. He testified that at about 1900 UTC on May 17, 1999 he and Inspector Gagnon were doing surveillance and stopped in Bissett at a float base. They heard an aircraft land and went to the dock at the float base. The aircraft, an Otter, a DHC-3, with registration marks CF-CBA came to a stop at the dock. He noticed Mr. Zaroski in the left seat.

Mr. Dittbrenner stated that they did a ramp check for the appropriate paper work and he looked inside the cockpit and cabin of the aircraft. He saw four passengers come out of the aircraft. When he looked inside to the rear of the aircraft, he saw a load of garbage bags and plastic containers which was unsecured. To the front there were large plastic coolers and duffle bags held in place by ropes which did not restrain them either vertically or laterally. He testified that the load at the rear was totally unsecured and that it was sitting on top of a net which is specifically designed to secure the load.

Exhibit M-1 is a Ramp Inspection sheet which notes that there was an unsecured load in the rear and that the load in the front was secured. Inspector Dittbrenner stated that he completed this form at 14:00 hours on May 17, 1999 and elaborated that this form is used as a matter of practice as a check list to ensure that all aspects of the inspection are covered.

He asserted that Mr. Zaroski was pilot-in-command of CF-CBA as he saw him get out of the left seat of the aircraft and spoke to him, asking for his pilot licence which he did not have although he provided his pilot licence number which the Inspector noted down and later verified.

Exhibit M-2 is a Detection Notice which Inspector Dittbrenner stated was used in the course of an inspection of an aircraft when a deficiency was detected and that in this case he noted down the unsecured load, the pilot's name and the regulation contravened.

As well the Inspector indicated that photographs were taken of the aircraft depicting the aircraft registration and the loads at the front and rear of the aircraft. It was the evidence of Inspector Dittbrenner that the passengers had exited the aircraft as had the pilot-in-command who was on the dock at the time but that no efforts had been made to unload the aircraft or to tamper with the load prior to the taking of the photos by Inspector Gagnon.

Mr. Richard Gagnon testified that he is employed by the Minister of Transport in the Aviation Enforcement Branch in Winnipeg, Manitoba and confirmed that on the relevant date he was on a road trip with Inspector Dittbrenner at Bissett, Manitoba. He said that on that day at about 14:00 hours they did a ramp check on a single engine Otter with registration letters CF-CBA. It was in the process of landing and taxied up to the dock. Both Inspectors went up to the aircraft and identified themselves to the pilot-in-command Zaroski.

Immediately after the passengers had deplaned, Inspector Gagnon took a series of photographs filed as Exhibits at this review. Exhibit M-4 shows a photograph of a single engine Otter white in colour with registration letters CF-CBA. Exhibit M-5 shows substantial cargo restrained by nylon rope which in Inspector Gagnon's opinion was not secured so as to prevent shifting in the event of an accident. Exhibit M-6 shows garbage bags and plastic containers and evident in this picture is the fact that the net for securing cargo is under the cargo.

Inspector Gagnon stated that Mr. Zaroski is known to him and that after examining the cargo, they notified Mr. Zaroski that the cargo was not secured in accordance with the regulations.

Since the Respondent was absent and was not represented, no evidence was produced in his defence.

ARGUMENT

Mr. Holbrook summarized that the evidence clearly demonstrates that Mr. Zaroski was pilot-in-command of a De Havilland DHC-3 aircraft with registration marks CF-CBA on the date and time above noted. He stated that as a result of an inspection it was determined that in addition to passengers there was cargo and baggage at the back of the aircraft that was not restrained at all so as to prevent their shifting during movement of the aircraft and that the cargo and baggage at the front of the aircraft was not secured sufficiently to meet the requirements of the CARs.

DISCUSSION

Paragraph 602.86(1)(b) of the CARs requires proof of the following elements:

1) that a person operated an aircraft
2) with carry-on baggage, or cargo on board
3) which was not restrained so as to prevent shifting during movement of the aircraft

The first element was proved through the evidence of the Inspectors who asked the pilot-in-command for his licence and the number provided was later verified to be that of Mr. Zaroski. The pilot's name and licence number were noted by Inspector Dittbrenner in Exhibits M-1 and M-2 being the Aircraft Document/Equipment Check and the Detection Notice respectively. The aircraft registration was also noted in both of these documents and in Exhibit M-3 being the Certificate of Registration of Aircraft CF-CBA owned by Kenora Air Service Ltd.

Proof of the second and third elements of the offence as related by the Inspectors is also noted in Exhibits M-1 recorded by Inspector Dittbrenner as follows: "Load in rear was unsecured. (Net was available). Load consisted of sleeping bags, empty cans in garbage bags. Main load up front was secured. 4 pax [passengers] carried." As well, the narrative found mid page of Exhibit M-2 states that, "Aircraft landed with an unsecured load consisting of garbage bags filled with empty cans, sleeping bags and a container which was empty."

The photographs which were introduced and marked as Exhibits M-4, M-5 and M-6 clearly depict the findings of the Inspectors on the day of the alleged infraction. Exhibit M-4 shows the underside of the right wing span, the right side and the tail section of an aircraft which is white in colour. The registration letters can be seen near the tail section of the aircraft as CF-CBA. Exhibit M-5 is a photo of four or five large plastic containers and three or four large bags or knapsacks which appear to be of a nylon or canvass material. This photo also depicts a yellow cord running across the length and along the side of this cargo which is stacked at the left front area of the aircraft just aft of the bulkhead. Exhibit M-6 is a photo of some cargo which is apparently at the rear of the aircraft. This cargo consists of some garbage bags which appear to be at least half full as well as a blue plastic container. These latter objects appear to be sitting on top of the cargo net which is attached to the rear of the aircraft.

Both Inspectors Dittbrenner and Gagnon testified that this cargo when viewed at the time of their inspection was as depicted in the photographs and that neither cargo load was secured as required by the regulations to prevent shifting in flight.

I find as a fact that the location of the cargo on board CF-CBA was such that it had potential for shifting in flight. Without any form of a tie down or other means of securing it in place, the cargo at the rear of the aircraft would be susceptible to turbulence or other forces which could have caused it to shift when the aircraft was in flight. The security of the cargo at the front of the aircraft, although tied with a rope, would appear to be questionable. In the absence of countering evidence or argument I find that the cargo on board CF-CBA was not adequately secured to prevent shifting so as to comply with paragraph 602.86(1)(b) of the CARs.

DETERMINATION

I conclude that the Minister has proved the above-mentioned contravention on a balance of probabilities and I confirm the assessed penalty in the amount of $250.

Faye Smith
Chairperson
Civil Aviation Tribunal