Decisions

CAT File No. O-0505-02
MoT File No. PAP6504-P-392074-023184

CIVIL AVIATION TRIBUNAL

BETWEEN:

Karl Douglas Hermann, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9
Air Regulation, C.R.C. 1978, c. 2, 551

Sanction Considerations, Fuel on Board


Review Determination
Arthur H. Lindop


Decision: March 9, 1995

The Minister's allegation is confirmed, and the suspension of Mr. Karl Hermann's licence is increased to 90 days. Said suspension will commence on the fifteenth day following service of the present determination.

A Review Hearing on the above matter was held January 11, 1995 at 10:00 hours at the Government of Canada Building in London, Ontario.

BACKGROUND

Mr. Karl Hermann is the holder of private pilot licence number P392074 and co-owner of a Piper Cherokee 181 (Archer) aircraft. He departed London, Ontario on September 6, 1993, for Buffalo New York, Ocean City New Jersey, Bader Field New Jersey with a return to London. Crossing Lake Erie enroute London, the engine failed as a result of fuel starvation.

A night forced landing was made on a highway near the Town of Vienna, south of London. There were no injuries to the persons on board; however, extensive damage was caused to the aircraft.

Transport Canada charged Mr. Hermann with an offence regarding certain aspects of the flight and suspended his private pilot licence. The Notice of Suspension reads in part as follows:

"Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Air Regulations, s.551 in that on or about September 6, 1993, at approximately 20:00 local time, at or near Bader Field Airport, Atlantic City, New Jersey, U.S.A., you commenced an IFR flight in a Piper PA-28-181 aircraft registered C-FLYW without sufficient fuel to fly to the airport of intended landing, thence to an alternate airport and thereafter for 45 minutes at normal cruising speed."

The suspension was to come into effect on September 29, 1994 and remain in effect until October 28, 1994, for a total of 30 days.

Mr. K. Hermann requested and was granted a Stay of Suspension pending the results of the Review Hearing.

EVIDENCE:

The Review Hearing commenced with a request by the Minister to have a witness qualified as an expert witness, with the additional request that this witness be allowed to stay in attendance throughout the Review Hearing. After being briefed on the mechanics of such a request, Mr. Karl Hermann, the document holder, requested that his prime witness also be so qualified, with the same request to be allowed to stay throughout the Review Hearing. After a brief discussion by all parties the requests were granted.

The Minister's witness, Mr. Richard Eaves, and Mr. K. Hermann's witness, Mr. Clair (Joe) Van Horne, were both sworn in and qualified as expert witnesses in their field.

Mr. Len Kaufman, Case Presenting Officer for the Minister, presented his opening statement. In this statement, he gave an overview of the events that took place September 6, 1993 with the ultimate crash landing on Highway 19, at midnight, near the Town of Vienna, Province of Ontario.

Mr. Kaufman called his first witness, Mr. Matthew Dufresne, who was duly sworn in. Mr. Dufresne confirmed he was a passenger on the flight.

In answers to questions on examination, Mr. Dufresne stated that he is not a pilot, that he was only a friend of Mr. K. Hermann and was on the trip for pleasure. Further evidence revealed that Mr. Dufresne occupied the co-pilot's seat for the entire trip and listened on the head set. Mr. Dufresne gave a narrative of the flight. He gave evidence of specifics such as refuelling at Buffalo and Ocean City, departing Bader Field at Sunrise around 8:00 p.m. with an estimated enroute time to London of about three hours, and a description of cockpit events following the engine failure over Lake Erie.

Examination of Mr. Dufresne revealed that at the time of the engine failure a selection to the second fuel tank proved fruitless as this tank was also empty. An emergency distress signal was given on a "Mayday," and the aircraft glided to the north shore of Lake Erie where an emergency night crash landing was attempted. The night being described as pitch black, there was difficulty in locating a field. The aircraft was then crash landed on Highway 19, near the Town of Vienna, Ontario. The time was MIDNIGHT.

This ended the examination in chief of Mr. Dufresne, and Mr. K. Hermann commenced cross-examination.

Under cross-examination, Mr. Dufresne gave evidence that at the time of the engine failure he thought he could see the lights of London. To questions on the condition of the aircraft after the crash, he stated that the left wing was detached from the main body and held on only by wires, and that the top of the rudder was damaged extensively. Mr. Dufresne stated that he does not wear a watch.

Mr. K. Hermann asked Mr. Dufresne if he had been interviewed by Mr. David Williams of Transport Canada. The answer was yes.

Re-examination was then carried out by Mr. Kaufman. With the use of an Ontario road map (Exhibit M-1), it was confirmed with Mr. Dufresne that Vienna is 33 statute miles from London and roughly 2 miles from the shores of Lake Erie. It was thus deduced that the aircraft ran out of fuel over the waters of Lake Erie.

With no further questions from Mr. K. Hermann, Mr. Dufresne was asked to step down.

Mr. Kaufman then introduced his second witness, Constable Randy Clarkson of the Ontario Provincial Police, Tillsonburg Detachment. The Constable was duly sworn in.

Through examination, Constable Clarkson stated that he had been with the OPP for 12 years including 10 years with the Tillsonburg Detachment. According to evidence given, the report of the aircraft accident was received by the Communication Centre in London by telephone and relayed immediately at 00:01 hours to the cruiser which arrived at the scene of the crash at 00:10 hours.

Constable Clarkson gave evidence with reference to his personal notes and his General Occurrence Report (Exhibit M-2) filed on September 7, at 02:00 hours. The pilot was identified as Mr. K. Hermann and his passengers as Mr. J. Hermann and Mr. Matthew Dufresne. According to the Certificate of Registration (Exhibit M-3), the aircraft registration was C-FLYW.

The report, signed by the aforementioned names, states in part that the flight departed Atlantic City at 20:20 hours and after the engine failed descended to 8,000 ft., continuing to descend on a glide. The damage report coincides with the statement of Mr. Matthew Dufresne in that the left wing was detached from the airframe, and there was extensive damage to the tip (this is in reference to the top of the rudder).

Constable Clarkson's report further states that none of the occupants were injured. It was noted that Mr. David Barnes of the Transportation Safety Board of Canada was advised but did not attend.

Mr. Kaufman concluded his examination, and Mr. K. Hermann declined to cross-examine. Constable Clarkson was asked to step down.

Mr. Kaufman called his third witness, Inspector David Williams, Regulatory Compliance Branch and, most recently, Airport Inspection, Transport Canada. Inspector Williams was duly sworn in.

During the examination in chief of Inspector Williams, Mr. Kaufman submitted eleven (11) documents listed as Exhibits M-3 to M-13. Exhibit M-9, filed as Fuel Consumption Calculation C-FLYW, consisted of a single page with three large flip overs.

Inspector Williams had investigated the incident and in doing so had interviewed Mr. Karl Hermann, Mr. Richard Eaves, Mr. Matthew Dufresne and Constable Clarkson.

Evidence was given that Mr. Dufresne had stated that on departure from Bader Field the sun was just going down; the flight was to be four hours or was supposed to be.

Evidence was given on the written statement by Mr. K. Hermann (Exhibit M-4) that he had visually inspected the fuel tanks before the flight from Bader Field. This inspection showed "one tank was full, and the other had a small amount of fuel exhausted." Exhibit M-4 also shows that an IFR flight plan was filed and that take-off was at 20:21 hours local. Three hours into the flight, the engine failed, and a forced landing was executed. Based on calculations, there would have been sufficient fuel to complete the flight.

Evidence on the interview by Transport Canada (Exhibit M-5) showed Mr. Karl Hermann signed the WARNED STATEMENT FORM aware of the caution on each page of the statement. That caution reads as follows: "I HAVE BEEN ADVISED THAT I AM NOT OBLIGED TO SAY ANYTHING UNLESS I WISH TO DO SO AND WHAT I SAY MAY BE GIVEN IN EVIDENCE."

Exhibit M-5 reads in part as follows:

" Q.: What height did you cruise at from Bader Field?

A.: Initially 6000 as flight planned, requested 8000 later.

Q.: Did you monitor your fuel gauges on the return journey?

A.: I did look at the fuel gauges along the way, yes.

Q.: Did you verify your fuel remaining before attempting to cross Lake Erie to London?

A.: Based on fuel on board when I took off, based on flight conditions, based on power settings, based on the fuel burn in the book ..., I had fuel to reach my destination.

Q.: How much fuel did you use between Buf (Buffalo) and Ocean City?

A.: ... 34.9 u.s. gals.

Q.: Have you any suggestion of how you managed to consume 50 gallons of fuel in a flight of 3 hours?

A.: Possibilities are fuel leak, venting of fuel, a problem with the engine, engine systems, fuel flow systems; you could go on and on."

Questions were asked on the entries in the Aircraft Journey Log for C-FLYW (Exhibit M-6). Evidence showed that in the RECORD OF TIME columns, the AIR TIMES (6) do not agree with the UP (4) and DOWN (5) times; also, the FLIGHT TIME is totally wrong.

Inspector Williams stated that all of Mr. K. Hermann's entries in the Aircraft Journey Log were incorrect for all of his flights. In fact, because of this continued error, the recorded engine times would be totally inaccurate; also, if the recorded incorrect flight times were used for planning, serious errors in fuel computations would result.

At this point in the examination in chief of Inspector Williams, the Tribunal was introduced to a complete recap of the flight legs, London to Buffalo - Buffalo to Ocean City - Ocean City to Bader Field - Bader Field to London.

Exhibit M-7: Flight Charts

Exhibit M-8: Canadian and United States Forecast Upper Wind Charts

Exhibit M-9: Fuel Consumption Calculation Charts

Exhibit M-10: Pages from the Piper Aircraft Corporation PA-28-181, Cherokee Archer II aircraft

Exhibit M-11: US Airport/Facility Directory

Exhibit M-12: A.I.P. Canada, Morning and Evening Twilight Charts

Exhibit M-13: Canada Flight Supplement Aerodrome/Facility Directory for London, Ontario.

Mr. Kaufman, through the examination of Inspector Williams, drew evidence that the actual average U.S. gallons per hour for the flight leg from Buffalo to Ocean City was 11.25. The basic numbers used for the computations of this flight leg were the actual recorded times and fuel quantities taken from the Aircraft Journey Log and from the written statement of Mr. K. Hermann.

34.9 U.S. gallons / 3.1 hours flight time = 11.25 G.P.H.

Further evidence was given with reference to the submitted Exhibits, in particular to the fuel consumption calculations for the inbound flight, IFR flight, Bader Field to London.

Exhibit M-9 shows the following:

"FUEL REQUIRED — BADER FIELD TO LONDON (IFR FLIGHT)

Bader Field to London 3.5 hours

London to alternate (Waterloo) .35 hours

45 minute reserve .75 hours

Total fuel required in hours 4.60 hours

Note: This does not provide a fuel allowance for an approach in London or Waterloo

In consideration of the known consumption on the outbound flight, there was a requirement for 4.6 hours x 11.25 gal. = 51.75 u.s. Gallons of fuel on board the aircraft at take off to legally complete the flight from Bader Field to London.

Based on the nautical miles per gallon obtained on the outbound flight, and with no consideration for headwind, the minimum required fuel for the single leg from Bader Field to London, with nothing available for the alternate or 45 minute reserve was

383 n.m./8.62 n.m. per u.s. gal. = 44.43 u.s. gallons"

Exhibit M-10 shows available "Usable Fuel, Total 48 (gallons)."

Mr. Kaufman stated, through Inspector Williams, that by fuel-route computations, the aircraft should have run out of fuel over Vienna.

Further evidence was given on a detailed review of the forecast upper wind reports for the Canadian stations on the Canadian forecasts, and for the American stations on the American forecast (Exhibits M-8(a) and (b)).

Altitude: 6000 ft. 9000 ft.

American forecast for time 21:00-06:00 Z or 16:00-01:00 EDT.

Ocean City USA 300/07 280/09
Philipsburg USA 240/13 250/17
Buffalo USA 250/15 250/23

Canadian forecast for time 17:00-21:00 Z or 12:00-16:00 EDT

Windsor CDN 280/16 260/25
Toronto CDN 260/17 250/26

Canadian forecast for time 21:00-06:00 Z or 16/00-01:00 EDT

Windsor CDN 290/11 270/21
Toronto CDN 290/15 270/23

Inspector Williams testified that, with a conservative computation on the average wind component on the return flight route, he would estimate an average head wind of 3.5 knots, giving an average ground speed of 109.4.

Inspector Williams gave evidence that Mr. Dufresne stated he was of the understanding that the flight home should be four hours, and that London customs closed at midnight. Evidence revealed that this was Mr. K. Hermann's first IFR flight. This ended Mr. Kaufman's examination of Inspector Williams.

Mr. K. Hermann commenced his cross-examination. He questioned Inspector Williams on whether he had obtained any copies of flight plans. The answer was no. Had he calculated the ground speed for each leg of the flight from Buffalo to Ocean City? The answer was no. Are American customs available at Ocean City? The answer was not known. What are the times of operation of Canadian customs at London Airport? The answer was not known.

This ended Mr. K. Hermann's cross-examination of Inspector Williams. With no further questions by Mr. Kaufman, Inspector Williams was asked to step down.

Mr. Kaufman recalled Mr. Richard Eaves to the witness stand. Mr. Eaves was originally sworn in as an expert witness in aircraft maintenance and as a pilot.

Mr. Eaves testified that he was invited to attend the crash site by an insurance company. His report stated that the left wing had been severed except for wires and tubing. The rotating beacon normally on the top of the tail section, had been torn away by a power-line that also damaged the upper part of the rudder.

Mr. Eaves further stated that he had been commissioned to salvage the crashed aircraft and to fully repair the aircraft for certification of airworthiness. Before moving the damaged aircraft, an inspection was carried out to determine if there was any fuel in the tanks or in any of the plumbing. There was no fuel.

This inspection was carried out in the company of an accident investigator. The damaged aircraft was secured before moving.

Mr. Eaves further stated that, before beginning repairs, an inspection was carried out on all the fuel system components. There were no indications of fuel stains, and on tests there were no malfunctions of the entire fuel system. The aircraft wing was repaired with a used replacement. The test flight was carried out by Mr. K. Hermann.

Mr. Eaves continued under examination and stated that the fuel gauges were accurate and that variation in engine power settings can vary the fuel burn considerably. He stated that a burn of 11.2 G.P.H. was high; normally it was 10.5 to 11.00 G.P.H. He also stated that he agrees with Inspector Williams' flight planning information. Mr. Kaufman concluded his examination of Mr. Eaves.

Mr. K. Hermann commenced his cross-examination. Mr. Eaves testified that on the night of the accident he had telephone conversations with Transport Canada and an insurance company.

Mr. Eaves further testified that he received permission from Transport Canada, Accident Investigation to move the aircraft. He stated that he arrived at the crash site around 01:00 hours.

Mr. K. Hermann drew testimony that the damage to the aircraft consisted of a severed left wing with the fuel lines and various wires intact. He observed that there were no fuel leaks in the plumbing nor any visible fuel stains at the vents or the caps.

On questions about fuel gauges, Mr. Eaves stated that the gauges of smaller aircraft show the presence of fuel in a tank but not necessarily the amount of fuel in a tank. He stated that a pilot must know his aircraft, especially a single engine, and know the history of the fuel consumption. He also stated that the use of the tachometer time indication is accurate enough, but not precise. Mr. K. Hermann concluded his cross-examination of Mr. Eaves.

As Mr. Kaufman had no further questions, Mr. Eaves was asked to step down. This ended the case presented by the Minister.

Mr. K. Hermann made a brief opening statement, confirming that he owns the aircraft in partnership with another pilot. He further stated that he still cannot comprehend why the fuel shortage happened.

Mr. K. Hermann called his first witness, Mr. Clair (Joe) Van Horne who had originally been sworn in as an expert witness. Mr. Van Horne is Mr. K. Hermann's instructor and is also a friend.

Mr. Van Horne testified that Mr. K. Hermann demonstrated satisfactory cockpit management and always had a handle on fuel management.

Mr. K. Hermann submitted as Exhibit D-1 a fuel consumption plot for several flights. The average fuel burn was shown as 9.22 for the period before September 6, 1993 and as 9.36 for the period May to September 1994.

Mr. Van Horne testified that he instructed Mr. K. Hermann to use an average fuel burn of between 9.5 and 10.0 for flight planning and management. Fuel consumption calculations for C-FLYW, Buffalo to Ocean City on September 6, 1993, were introduced by Mr. K. Hermann and filed as Exhibit D-2. This document confirms the flight leg time of 3.1 hours and confirms the fuel used as 34.9 U.S. gallons.

The computations of gallons per hour reconfirm the numbers submitted by the Minister:

34.9 fuel / 3.1 hours = 11.26

Mr. K. Hermann submitted for filing as Exhibit D-3 a flight map showing the planned route of his outbound and inbound flights. Mr. K. Hermann and Mr. Van Horne both confirmed that Exhibits D-1 and D-2 were produced for the Tribunal the evening before the Review Hearing, January 9, 1995. With no cross-examination by Mr. Kaufman, Mr. Van Horne was asked to step down.

Mr. K. Hermann called his brother, Mr. Jeffrey Hermann, as his next witness. Mr. Jeffrey Hermann, who was a passenger on the flight, was duly sworn in, and he stated that he has done a number of flights with his brother.

Through examination, Mr. Jeffrey Hermann testified that their party arrived at the airport at 8 p.m., at which time his brother made a telephone call to file a flight plan and was observed taking notes. He then conducted an external check on the aircraft. During this check he looked into the fuel tanks and used a flashlight to view the level of the fuel. "We took off at 8:20 p.m."

Mr. Jeffrey Hermann stated that he has full confidence in his brother. He would fly with him again and would even include his family. Mr. Karl Hermann ended his presentation with the conclusion of his examination of Mr. Jeffrey Hermann. With no further questions from either side, Mr. Jeffrey Hermann was requested to step down.

Mr. Kaufman was given an opportunity to make a closing statement. Before doing so, he suggested that Mr. K. Hermann might be interested in taking the witness stand in defence of his filing for a Review Hearing before the Tribunal.

Mr. K. Hermann took the witness stand and was duly sworn in.

Mr. Kaufman began his examination of Mr. K. Hermann by bringing forth Exhibit M-11, United States Government Flight Information Publication - Airport/Facility Directory, Effective 23 Jun. 1994 to 18 Aug. 1994. He questioned whether fuel was, in fact, available on the date of his flight. The answer was that the publication was not correct for September 6, 1993.

In answer to why the Aircraft Journey Log entries were not entered correctly, Mr. K. Hermann stated that he was instructed by Mr. Van Horne, his instructor, to do it this way, the same way he does. Mr. Kaufman then questioned why the other owner of the aircraft, Mr. R. Jordan, entered the times correctly. Mr. K. Hermann did not know.

Mr. K. Hermann testified that this flight, on September 6, 1993, was his first IFR flight. He further testified that he has flown many long flights and has always used the average fuel burn of between 9.5 and 10.0 G.P.H. as instructed by Mr. Van Horne. Testimony was given that neither flight logs nor fuel logs are kept on any of his flights.

To the question - have there been any fuel system problems with your aircraft before this accident? The answer was yes.

Mr. Kaufman asked the question: Are you familiar with the Piper Aircraft Corporation recommended procedure for flight fuel management of the Archer PA 28-181 aircraft described as follows: The first hour, fuel comes from either the left or the right tank, THEN the next two hours from the other tank, THEN back from the original tank for the remainder of the flight? The answer was yes. Did you follow this procedure on the flight from Ocean City to London? The answer was no.

Mr. Kaufman asked Mr. K. Hermann to confirm that he was a school teacher and that he was to attend a teacher's meeting at the opening of school, September 7, 1993. The answer was yes. Mr. K. Hermann was asked to step down.

This ended the examination of witnesses by Mr. Kaufman and Mr. K. Hermann, and they both gave final presentations. Mr. Kaufman made a statement on sanctions, and this ended the Review Hearing.

EVIDENCE IN REVIEW

The flight operations on September 6, 1993 comprised four flight legs: London, Ontario to Buffalo, New York – Buffalo, New York to Ocean City, New Jersey – Ocean City, New Jersey to Bader Field, New Jersey – Bader Field, New Jersey to an engine out, middle of the night, crash landing on a highway approximately 33 miles south of London and 2 miles north of the shores of Lake Erie.

Mr. K. Hermann provided aircraft fuel consumption calculations for the one flight leg from Buffalo to Ocean City, flight time 3.1 hours, for a fuel burn of 34.9 U.S. gallons computing to 11.25 gallons per hour.

The Minister's calculations, from the Canadian and American Forecast Upper Wind Reports, indicate a conservative average wind component for the flight leg Bader Field to London of minus 3.8 knots. This wind component applied to the aircraft true airspeed would give an average ground speed of 109.4 knots. Pre-flight calculations, using a distance of 383 nautical miles, give a flight time of 3.5 hours. When this time is applied to the flight fuel burn of 11.25 G.P.H. there is a flight fuel requirement of 39.5 gallons. The additional time, to meet the legal requirement for the flight to continue to an alternate (Waterloo, Ontario .35 hours) and for a 45 minute reserve (.75), would be 4.6 hours. At 11.25 gallons per hour, the estimated total fuel requirement for the flight would be 51.75 gallons. The usable fuel on board this aircraft is 48 U.S. gallons, leaving a shortfall of almost 4 gallons on a planned IFR flight.

Mr. K. Hermann revealed that this trip to Atlantic City and return was his first IFR flight. He also stated that he is familiar with the Piper Aircraft Corporation recommended fuel management procedure for the Cherokee 181 (Archer) aircraft; requiring the use of one tank for one hour then a switch to another tank for two hours, which would leave approximately one and one-half hours of fuel remaining IF the tanks were full at take-off. He did not follow this procedure on the flight in question.

Mr. K. Hermann stated that fuel was not available at Bader Field, and that he had no idea of the amount of fuel consumed on the flight from Ocean City. On his aircraft pre-flight check at Bader Field, he observed that he did not have full tanks.

Mr. K. Hermann revealed that he does not keep flight or fuel logs on any of his flights. His flight planning and enroute fuel burn computations are all predicated on an average burn of 9.5 to 10.0 gallons per hour, as instructed by his instructor, Mr. Van Horne.

Mr. K. Hermann stated that he had experienced fuel problems with this aircraft on previous occasions.

Mr. Richard Eaves, licensed aircraft mechanic and qualified pilot, gave evidence that, before beginning repairs to the damaged aircraft, inspections and tests were carried out on all of the fuel system components. There were no indications of fuel stains nor malfunctions.

CONCLUSION

On the outbound flight legs to Atlantic City, the pilot refuelled twice – once at Buffalo and then again at Ocean City. A short flight was made to Bader Field then a return to London on an IFR flight plan. The departure from Bader Field was done with an unknown fuel quantity. The pilot embarked on a maximum flight leg for this aircraft when available actual fuel figures and available forecasted upper wind data would indicate a need for additional fuel.

DETERMINATION

The evidence before me shows that the pilot showed a complete disregard for the basic rules of airmanship. He showed a complete unawareness of his responsibilities in conducting this IFR flight. He endangered the lives of his passengers, of persons on the ground and of persons who travel Highway 19.

I found Mr. K. Hermann to have little or no remorse for the course of his actions. I do believe that he does not understand the severity of the situation.

Mr. K. Hermann did not conduct a safe and properly organized flight. His apparent disregard for his responsibilities, as pilot-in-command of the aircraft, for the lives of his passengers and the persons on the ground suggests to me that a more severe penalty than a 30-day suspension is appropriate.

The Minister's allegation is confirmed, and the suspension of Mr. Karl Hermann's licence is increased to 90 days.

Arthur Lindopn
Member
Civil Aviation Tribunal


Appeal decision
Alfred R. Spence, Philip D. Jardim, Ronald E. McLeod


Decision: February 19, 1996

The appeal is denied. The 90-day suspension is upheld and will begin fifteen (15) days following the date of service of this Appeal Determination.

By agreement, this Appeal proceeded by way of written submission.

BACKGROUND

The Appeal arose from a determination made by Mr. Arthur Lindop, following a Review Hearing held January 11, 1995 in London, Ontario.

The Applicant, Karl Douglas Hermann, was alleged by the Minister of Transport to have contravened the following:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Air Regulations, s.551 in that on or about September 6, 1994, at approximately 20:00 local time, at or near Bader Field Airport, Atlantic City, New Jersey, U.S.A., you commenced an IFR flight in a Piper PA-28-181 aircraft registered C-FLYW without sufficient fuel to fly to the airport of intended landing, thence to an alternative airport and thereafter for 45 minutes at normal cruising speed.

The above Review Hearing resulted in the following determination by Mr. Arthur Lindop.

REVIEW DETERMINATION

The evidence before me shows that the pilot showed a complete disregard for the basic rules of airmanship. He showed a complete unawareness of his responsibilities in conducting this IFR flight. He endangered the lives of his passengers, of persons on the ground and of persons who travel Highway 19.

I found Mr. K. Hermann to have little or no remorse for the course of his actions. I do believe that he does not understand the severity of the situation.

Mr. K. Hermann did not conduct a safe and properly organized flight. His apparent disregard for his responsibilities, as pilot-in-command of the aircraft for the lives of his passengers and the persons on the ground suggests to me that a more severe penalty than a 30-day suspension is appropriate.

The Minister's allegation is confirmed, and the suspension of Mr. Karl Hermann's licence is increased to 90 days.

THE APPEAL HEARING

The Appellant (Mr. Hermann) and the Respondent (MoT) were requested to submit written submissions regarding their respective positions.

GROUNDS FOR APPEAL

  • Mr. Hermann does not deny he violated section 551 of the Air Regulations.
  • Mr. Hermann is of the opinion one should not be penalized for seeking additional information regarding fuel problems or malfunctions of systems. Mr. Hermann states the upgrading of the suspension to ninety (90) days is excessive and regards the original suspension to be more appropriate.

THE ISSUES

Evidence arising from the transcript clearly indicates a lack of proper flight planning and fuel management practices. Even if higher than normal fuel consumption resulted from a technical fault, Mr. Hermann's lack of good airmanship in failing to recognize it would have resulted in the almost inevitable consequences that transpired.

In addition to his experience with the aircraft, Mr. Hermann had at least two opportunities to evaluate the fuel burn on his aircraft:

  1. The flight from London to Buffalo where he landed and refuelled.
  2. The flight from Buffalo to Ocean City where he again landed and refuelled.

These occasions could have and should have been used to evaluate fuel consumption.

Further, basic common sense and good airmanship should have told Mr. Hermann that, since he needed to refuel on the eastbound sectors when he had a tailwind, he would most certainly require to refuel on the westbound journey into a headwind, particularly at night on an IFR flight plan.

There was no reference in the transcript to the power settings Mr. Hermann used during flight. Power settings selected could have been higher than normal, considering the load factor and a possible attempt to arrive in London Ontario prior to the close of Canada Customs.

Mr. Hermann did not follow the recommendations for fuel management stated in the Piper Aircraft Manual. Unfortunately he still seems to be of the opinion that he was a victim of circumstances, and that no violation took place.

APPEAL DETERMINATION

It is clear to the appeal panel that fuel exhaustion and the resulting crash could have been averted had Mr. Hermann made out a proper fuel flight plan, managed his fuel in the proper manner, and exercised good airmanship and basic common sense.

Therefore, the appeal is denied.

Recommendation by the Panel

From our consideration of the evidence in this matter, Mr. Hermann is seriously lacking in his knowledge of flight planning, fuel management and basic airmanship. Had we the authority to do so, we would strongly recommend to the Minister that before Mr. Hermann's licence is reinstated, he undergo Transport Canada approved courses in these subjects, and satisfactorily demonstrate his knowledge by way of an examination following such courses.

Given our understanding of section 6.9 of the Aeronautics Act, and the extent of the Tribunal's authority to substitute its opinion, the Tribunal appears to be precluded from imposing this type of retraining program in the face of a contravention. In our opinion, legislative amendment to authorize the Tribunal to make such a finding would be consistent with the public interest inasmuch as it would enhance aviation safety.

Reasons for Appeal Determination by:

Alfred R. Spence, Member

Concurred:

Philip D. Jardim, Member
Dr. Ronald E. McLeod, Member