Decisions

CAT File No. C-2361-33
MoT File No. RAP5504-044881 (P)

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Kevin Jerry Stoesz, Respondent

LEGISLATION:
Aeronautics Act, R.S. c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR/96-433, ss. 602.14(2)(b), 602.15(2)(b)

Crop spraying, Low flying elsewhere than over a built-up area, First offence


Review Determination
Elizabeth M. Wieben


Decision: March 4, 2002

I find that Mr. Kevin Stoesz contravened paragraph 602.14(2)(b) of the Canadian Aviation Regulations in the fact that he flew lower than necessary for the purpose of the operation and that he also created a hazard to property. I feel that the level of sanction is appropriate being this is the first offence. I confirm the assessed monetary penalty of $250. That amount, made payable to the Receiver General for Canada, 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 Wednesday, February 6, 2002 at 10:00 hours, at the Federal Court of Canada in Winnipeg, Manitoba.

BACKGROUND

On July 17, 2001, Kevin Stoesz departed from Ile des Chênes in aircraft C-GRNG, a Piper PA-25 spray plane, and after making several passes over a field, on the last pass bumped Manitoba Hydro power lines such that a pole and wires came down and power was disrupted for several users. Kevin Stoesz then returned with the aircraft to his base at Ag Flite and reported the incident to his father, Mr. Dennis Stoesz. Dennis Stoesz then phoned Manitoba Hydro, and they repaired the hydro line and issued a bill to Dennis Stoesz, Ag Flite Services. Transport Canada was made aware of the incident by an anonymous caller, interviewed Kevin Stoesz and subsequently filed the charges under paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARs).

EVIDENCE

During the hearing Transport Canada provided documents identifying the aircraft journey log entries for the flight, and the commercial pilot licence of Kevin Stoesz as issued on August 2, 2001. Transport Canada inspector, Mr. Roger LeBlanc, entered as an exhibit a public accident report from Manitoba Hydro showing that an accident had taken place at NW 8-7-4e on July 17, 2001. It was stated that a crop-dusting plane came into contact with the overhead distribution power system, and a pole and conductor came down into an open field causing a fuse to blow and the line to de-energize ( i.e., power failure). The "public" involved was an "Ag Flite crop duster"; it is also noted that Ag Flite was the first to contact Manitoba Hydro and that another customer called as well. The damage to the line distribution system is specified as $1,152.76, and the bill is issued to Ag Flite. Transport Canada provided documentation to identify the pilot, the aircraft, the day and time of the flight and the amount of damage as specified in Manitoba Hydro's bill.

These facts were not disputed by Kevin Stoesz on the witness stand or by his father, Mr. Dennis Stoesz, who acted as agent for his son. In fact Ag Flite had very quickly taken responsibility for the incident by notifying Manitoba Hydro. Kevin Stoesz declared that his commercial pilot licence had been issued prior to July 17th (the day of the flight) and that at the time of the flight he was a licensed commercial pilot even though Transport Canada records showed his licence had been issued in August. This was because his licence had been signed off by an authorized person for the privileges of the commercial pilot licence and the paperwork had not yet been processed by Transport Canada.

When asked whether he had been crop dusting or flight training during this flight, he replied that he was doing "flight training for crop dusting." He further explained that he needed 50 hours of agricultural time on top of the 200 hours for the commercial pilot licence to satisfy the insurance company requirements and that he was building hours to meet that requirement.

At the time of the accident, he was practising crop spraying using water and wanted to practice with an obstacle. He looked over a field chosen because it had wires as an obstacle and made a number of passes over the field practising his crop spraying. He said he had made about five passes when he hit the power line. It is written in the aircraft log book that there was no damage to the aeroplane. Mr. Kevin Stoesz testified that the aircraft was checked, that Dennis Stoesz phoned Manitoba Hydro to report the strike and that he then went out to practice some more.

Mr. Kroeker, a witness and local resident whose power was out because of the line being down was present and asserted that in his opinion there was no hazard created by the power line coming down. He had spoken to a pig farmer on the same power line whose power had been affected by the power outage and stated that this farmer had backup power (a generator) and that this farmer's animals had not been in danger due to the power outage.

Transport Canada submitted as evidence Manitoba Hydro's bill citing "damage caused when crop-dusting plane came into contact with overhead distribution" system.

Kevin Stoesz testified that he had overflown the field prior to starting the practice run flights and was aware of the wires and of their danger to him. He added that he had chosen the field because he wanted to use the wires as an obstacle. It was stated by Kevin Stoesz that crop sprayers can normally come within 6-8 feet in proximity to power lines. He said that although he felt a bounce or bump as he hit the wires and realized what had happened, he felt that he had taken all necessary precautions and that he had not created a hazard.

Transport Canada pointed out that the same practice could have been done more safely using trees as an obstacle. Although there was some discussion, there was no evidence that there was turbulence on the day of this flight.

DISCUSSION

Paragraph 602.14(2)(b) of the CARs, under which Kevin Stoesz was charged, permits a person to operate an aircraft at a distance less than 500 feet from any person, vessel, vehicle or structure if that operation is permitted under section 602.15 (Permissible Low Altitude Flight).

Paragraph 602.15(2)(b) of the CARs states:

(2) A person may operate an aircraft, to the extent necessary for the purpose of the operation in which the aircraft is engaged, at altitudes and distances less than those set out in
(a) paragraph 602.14(2)(a), where operation of the aircraft is authorized under Subpart 3 or section 702.22; or
(b) paragraph 602.14(2)(b), where the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated for the purpose of

(i) aerial application or aerial inspection,
(ii) aerial photography conducted by the holder of an air operator certificate,
(iii) helicopter external load operations, or
(iv) flight training conducted by or under the supervision of a qualified flight instructor.

The issues brought forth by the two parties were:

1) What was the nature of the flight? (flight training, crop dusting or neither)

2) Was a hazard created to persons or property on the surface?

3) Did the pilot exercise due diligence to prevent the accident from happening?

It is not likely that Mr. Kevin Stoesz met the requirements to be considered either crop dusting or flight training. Crop dusting would be the actual application of a required product and not practising with water to build hours for insurance purposes. He was already a licensed commercial pilot by his own testimony and would not normally be flying under the supervision of a qualified flight instructor. There was no evidence that he was under a specific training plan or that he received extra instruction after misjudging his altitude and hitting the wires. He simply went out flying again to build up more hours. It would seem prudent to have some additional instruction prior to attempting more low flying, especially as the hazard working around wires is fairly high.

If this flight were to be considered one of the permitted uses, we must consider the wording "may operate an aircraft, to the extent necessary for the purpose of the operation" and "where the aircraft is operated without creating a hazard to persons or property on the surface".

An aircraft that hits wires while crop dusting or flight training is lower than necessary for the purpose of the operation, whether that low altitude is intentional or due to misjudgment. I accept Mr. Kroeker's evidence that a hazard was not created for himself or for that of his neighbour, the farmer; however, there is proof that Manitoba Hydro had property damage due to the hit by the low flying aircraft. This hazard was created in that actual damage was done.

There was no evidence of turbulence, or of engine malfunctions during the flight; the main factor appears to be the inexperience of the pilot.

DETERMINATION

I find that Mr. Kevin Stoesz was in violation of paragraph 602.14(2)(b) of the CARs in the fact that he flew lower than necessary for the purpose of the operation and that he also created a hazard to property. It is unlikely Mr. Stoesz could be considered to be crop spraying or that he would qualify to be doing flight training under the supervision of a qualified flight instructor. The fact that this happened due to inexperience does not change the facts.

I feel that the level of sanction is appropriate being this is the first offence and that both the pilot and the company who owned the aircraft did what they could to mitigate any impact on others after the incident.

Elizabeth Wieben
Member
Civil Aviation Tribunal