Decisions

CAT File No. C-1964-33
MoT File No. RAP5504-040116 (P)

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Ellsworth Brian Hemingson, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.19(7), (10)

Landing, Loss of separation, Take-off, Attempt


Review Determination
David Lloyd Eckmire


Decision: June 6, 2000

Based upon the evidence before me, I find that the Minister has not proven that Ellsworth Brian Hemingson contravened subsection 602.19(7) of the Canadian Aviation Regulations. The monetary penalty of $250 is dismissed.

A Review Hearing on the above matter was held Thursday, May 4, 2000 at 10:00 hours at the Prince Albert City Hall, in Prince Albert, Saskatchewan.

THE ALLEGATION

By registered mail Captain Ellsworth Brian Hemingson received the following notice of assessment of monetary penalty dated December 9, 1999:

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 602.19(7), in that at approximately 2032 hours UTC, on or about the 22nd day of June, 1999, at or near Prince Albert, Saskatchewan, being the pilot-in-command of an aircraft, to wit, a Hawker Siddeley HS748 2B, bearing Canadian registration marks C-FQVE, that was manoeuvring on the surface, you failed to give way to a Cessna 150H aircraft that was landing or about to land.

TRANSPORT CANADA CASE PRESENTATION

Mr. Richard J. C. Gagnon, Civil Aviation Inspector with Transport Canada Aviation Enforcement, in Winnipeg, Manitoba, outlined the Minister's case.

He asserted that Captain Hemingson, pilot-in-command of a Hawker Siddeley HS 748 2B aircraft, bearing Canadian registration marks C-FQVE, and operating as West Wind flight 736, attempted to take off from runway 26 at the Prince Albert, Saskatchewan airport, on or about June 22, 1999, at approximately 20:32 UTC, and that he failed to give way to a Cessna 150H, Canadian registration C-FXLB, thereby contravening subsection 602.19(7) of the Canadian Aviation Regulations (CARs).

Subsection 602.19(7) of the CARs states: "Where an aircraft is in flight or manoeuvring on the surface, the pilot-in-command of the aircraft shall give way to an aircraft that is landing or about to land."

Mr. Gagnon stated that a pre-hearing conference between the Applicant and the Respondent had produced agreement that the written statements of witnesses J. D. Gaudry, Robert O'Donovan, and Bill Warrell would be entered into the record, and were accepted as factual by Captain Hemingson.

THE EVIDENCE

Mr. Gagnon then presented documentary evidence including the certificate of registration and certificate of airworthiness for aircraft C-FQVE, the journey log for the aircraft for June 22, 1999, the notice of assessment, a transcript of radio communications made by the Prince Albert Flight Service Station (FSS) during the time period before, during and just after the incident, a copy of the audio tape of the actual radio transmissions, a copy of the Prince Albert airport diagram taken from the Canada Air Pilot, and a copy of West Wind Aviation's aircraft occurrence report, dated June 22, 1999, together with explanatory diagrams.

Mr. Gagnon then played the audio tape of radio transmissions recorded by the Prince Albert FSS during the period beginning at 20:15:56 UTC, until 20:44:40 UTC during which time the incident took place.

DOCUMENT HOLDER CASE PRESENTATION

Captain Hemingson took the stand and was affirmed. He stated that he was the pilot-in-command of West Wind 736 on June 22, 1999 and in fact made the radio transmissions between the aircraft and the Prince Albert FSS. He agreed that the audio tape and transcript were an accurate portrayal of the events that led to the incident.

Captain Hemingson stated that he was aware that the Cessna 150 XLB was inbound to the airport and was planning to overfly the airport, joining a right downwind leg for a landing on runway 26.

Captain Hemingson taxied to the intersection of taxiway Delta and Runway 08 / 26. At this point, he saw the Cessna 150 cross overhead the airfield, about to turn to join the right downwind traffic pattern for runway 26.

Believing he had sufficient time to backtrack on runway 26, and then take off while the C 150 completed its landing pattern, Captain Hemingson broadcast his intentions on the mandatory frequency, and backtracked to the button of runway 26. During this time, he heard the Prince Albert FSS advise the C 150 XLB that the Hawker 748 was backtracking runway 26 and advising XLB to "extend a little bit."

Captain Hemingson heard the pilot of the C 150 say "I have him in sight." A minute later, Captain Hemingson broadcast that West Wind 736 is "on the roll runway 26 right turn out."

Seconds later the C 150 pilot broadcasts, "You've got a 150 landing over you."

Captain Hemingson aborted the take-off attempt. He believes the pilot of the C-150 XLB was guilty of poor airmanship, and that he (Hemingson), had taken all reasonable precautions to determine the location of the C 150, and allow enough time to backtrack his aircraft and take off before the C 150 commenced its final approach.

CROSS-EXAMINATION

Under cross-examination by Inspector Gagnon, Captain Hemingson revealed that he had been flying for 35 years and had over 20,000 hours.

Mr. Gagnon asked Captain Hemingson if his flight was behind schedule or if there was a need for a hurried departure. Captain Hemingson advised that they were not behind schedule, and that their Prince Albert stop was normally of short duration. Mr. Gagnon asked what options Captain Hemingson may have had which might have prevented this incident. Captain Hemingson admitted that he could have waited for the C 150 to complete the traffic pattern, or called him directly on the radio to discuss the potential conflict.

SUMMARY AND CONCLUSION

The Prince Albert airport is a busy airport hosting scheduled airline traffic, air taxi and charter flights, flight training, itinerant traffic, and in the summer, a forest fire tanker base. A NAV CANADA FSS provides both air and ground advisory service on the mandatory frequency of 122.3. It is customary for aircraft to depart after receiving the local advisory announcement from the FSS, and making the requisite blind radio call, even if other aircraft are in the vicinity or in the circuit. On the day of the incident, the airport was busy, with itinerant traffic, and fire service aircraft both departing and arriving, and accommodating each other in the process.

In his summary, Mr. Gagnon characterized the pilot of the C 150 XLB as "inexperienced" and "a problem child." He indicated that Transport Canada had already dealt with this pilot, although no evidence was introduced, as to how he was dealt with, nor was he produced as a witness. The radio transcript and audio tape reveal however, that the pilot was inbound to Prince Albert from the south, and was planning to fly to a left base for runway 26, not an approved procedure. This potentially dangerous situation was pointed out on the mandatory frequency by a fire service aircraft pilot who suggested that the C 150 pilot follow the approved procedure for joining the traffic pattern.

The clear implication was that then everyone would know where he was supposed to be. The FSS radio operator readily agreed with this suggestion, advising the pilot of XLB that the standard pattern for the circuit was right hand, and could he "cross overhead the field, come straight over the field and join a right hand downwind?" The pilot of the C 150 XLB stated he would comply.

Nevertheless, Inspector Gagnon questioned the judgement and airmanship of Captain Hemingson in commencing a take-off while the C 150 was in the traffic pattern. Mr. Gagnon alleged that the C 150 had priority once in the circuit.

Subsection 602.19(7) of the CARs does not define where or when the "landing" process begins. Does it begin when a pilot radios in that he is inbound and plans to land at a certain airport? Does it begin when the pilot enters the aerodrome control zone? Does it begin when he overflies the airport, or when he joins the downwind, or when he turns base leg? Or does the landing process begin when the pilot turns onto final approach?

The manoeuvring speeds of a variety of aircraft necessitate some latitude in interpreting this regulation. For example, it is reasonable to expect that larger or faster aircraft will fly a wider landing pattern, and that the time and distance of the downwind, base leg and final approach leg, will vary not only with aircraft type, but also with the prevailing wind conditions.

Experienced pilots will have developed a sense of this timing and therefore the ability to judge situations accordingly. Captain Hemingson observed the C 150 overhead the airport, just before it would have joined the downwind leg. He determined that he had sufficient time to backtrack his aircraft the short distance to the button of runway 26, turn around and commence an immediate departure, without interfering with the landing of the C 150 XLB.

His sense of situational awareness was reinforced by hearing first that the C 150 was on base leg, and then acknowledging the FSS suggestion that it "might want to extend a little bit" by stating "I have him in sight." Captain Hemingson then hears XLB state he is "on final 26" and commences his take-off roll, still in the belief that there is ample separation, and that the pilot of XLB has him in sight.

In this regard, it must be noted that subsection 602.19(10) of the CARs states: "No person shall conduct or attempt to conduct a take-off or landing in an aircraft until there is no apparent risk of collision with any aircraft, person, vessel, vehicle, or structure in the take-off or landing path." [Emphasis added.]

Captain Hemingson made the required and customary radio calls on the Prince Albert mandatory frequency. He established situational awareness by maintaining a listening watch on the radio frequency, and by visually locating the C 150 aircraft as it was overhead the airfield and about to turn downwind. He then heard the pilot of the C 150 say that he was on base leg, and that he had the Hawker in sight. At this point Captain Hemingson would have turned his aircraft to line up with the runway for take-off, and would no longer be able to see the C 150. However the responsibility for "see and avoid" now clearly rested with the pilot of the C 150 XLB.

When Captain Hemingson heard the radio transmission from XLB "You've got a 150 landing over you", he immediately radioed the FSS asking "Is he overshooting or what's he doing?" The FSS radio operator replied, "No he's right on top of you, you'd better hold your position." Captain Hemingson then said, "Okay 736 is going back to the button here. Hey he said he had us in sight, I thought he was extending." The FSS radio operator said, "Yeah that's what I thought too."

There is no doubt that a contravention of the CARs took place here. The essential question is just who was at fault?

I am not persuaded that the Minister has proven that Captain Hemingson contravened subsection 602.19(7) of the CARs. The monetary penalty of $250 is dismissed.

David Lloyd Eckmire
Member
Civil Aviation Tribunal