Decisions

CAT File No. O-1813-60
MoT File No. 301364

CIVIL AVIATION TRIBUNAL

BETWEEN:

Roger C. Hall, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, ss. 7.1(1)(b), 7.1(2)(b)

PPC, Pilot Proficiency Check, Operating for Hire or Reward, Obligation of Check Pilot, Failure


Review Determination
Allister W. Ogilvie


Decision: September 8, 1999

I confirm the Minister's decision to issue an unsatisfactory assessment of the pilot proficiency check of April 20, 1999 in the case of Roger C. Hall.

A Review Hearing on the above matters was held Wednesday, August 25, 1999 at 10:00 hours at the Federal Court of Canada, in Toronto, Ontario.

BACKGROUND

On April 20, 1999, Captain Hall and First Officer Voce were operating as a crew performing a recurrent Airbus A320 simulator ride conducted by Captain Mark Stokes.

During the course of the simulator ride, the script called for an overshoot of a runway and go-around with an accompanying engine failure. The crew accomplished most of the manoeuver in accord with the expectations of the check pilot. However, when they attempted a relight of the affected engine, the ride was terminated and adjudged to be unsatisfactory. The unsatisfactory assessment resulted in a suspension of their pilot proficiency checks (PPC).

Captain Hall and First Officer Voce have asked the Civil Aviation Tribunal for a review of that suspension, which brings us here today.

PRELIMINARY MATTERS

  1. Captain Hall and First Officer Voce each requested a review hearing. Hence, each has a separate file and would be entitled to their own hearing. However, as the matters arise out of the same occurrence, involving the same individuals, the parties agreed that the hearings would be held together. The testimony and evidence received will be common to both. However, they will remain separate files and each will receive a written determination.
  2. Notice — In initial correspondence in this file, First Officer Voce stated that at no time was he advised of his rights or steps to be taken if he disagreed with the outcome (of his check ride).

A review of similar files (i.e., unsatisfactory PPC) in the Civil Aviation Tribunal registry shows that Transport Canada has not been issuing the required notices.

I queried the Minister's representative about the absence of such notice. He advised that in most instances a pilot receiving an unsatisfactory assessment is given more training and completes another check ride within a few days' time. By the time Transport Canada is advised of the failure some time later, the document holder is once again flying.

As much as that may be the industry standard practice, it is not satisfactory. As the company check pilot is, when conducting the ride, a delegate of Transport Canada, it has immediate knowledge of the circumstances. The fact that the pilot may have regained his PPC and is once again flying does not eliminate his right to have the initial decision reviewed nor does it alleviate the Minister's obligation to provide notice.

If there has been an unsatisfactory check ride and the Minister decides to suspend or cancel a Canadian aviation document (CAD), in this case a PPC, he is obliged by the Aeronautics Act to give notice to the document holder of the decision. That notice shall contain certain prescribed information and shall state the date and address at which a request for a review of the decision of the Minister is to be filed in the event the holder of the document wishes to have the decision reviewed (Aeronautics Act 7.1(2)(b)). In ignoring their own statutory obligation, the Minister's officials have imposed on themselves a less stringent standard than they expect from the aviation public.

In this instance, the affected individuals learned of their right to a review by word of mouth rather than by the statutory required notice from the Minister. That is an unsatisfactory state of affairs that must receive immediate corrective action.

As there was no notice from the Minister it would be tempting to dismiss the Minister's case but that would only compound the wrong by depriving the Applicants of a chance to present their case. As the Applicants, of their own accord, learned of their right to a review hearing, it will go forward, to allow them to be heard.

EVIDENCE

The Minister's representative, Mr. Pratt, called Captain M. Stokes, the check pilot for the ride in question. His testimony was received by teleconference call. Captain Hall and First Officer Voce testified on their own behalf.

The evidence received shows that Captain Hall was the pilot flying (PF) and First Officer Voce was performing the non-flying duties (PNF). As part of the script the crew was performing a localizer back-course approach to runway 30 at the Vancouver International Airport. At approximately 200 feet above ground on the approach they were informed that the runway was blocked thus necessitating a go-around. The simulator had been programmed to have an engine failure during the go-around.

Captain Hall flew the appropriate single engine, missed approach procedure, utilizing the proper procedures. The aircraft was safely flown at all times. He had called for the required checklist.

First Officer Voce testified that as PNF, he was tasked with doing the checklist items as prescribed on the electronic central aircraft monitoring (ECAM) system. The ECAM system gives the crew both visual and aural warning depending on the severity of the problem. Level 3, a red warning light and continuous chime requires immediate crew action; level 2 gives an amber caution, with a single chime, but the fault does not require immediate action; level 1 gives an amber caution, not accompanied by any aural warning and only requires crew monitoring (Exhibit D-1).

A lower page display on the ECAM provides a checklist of items that the PNF is to accomplish in response to the warning or caution as the case may be. The ECAM also has advisory function that provides system parameter monitoring. It brings up automatic call of the relevant system page on the display. The affected parameter pulses green. It is an advisory function that does not require crew action.

First Officer Voce testified that before suggesting a restart of the engine he had checked N1, N2 and vibration indicators. The oil quantity gave a pulsing green indication. Neither crew verified the actual oil quantity.

When it came time to initiate a relight of the engine, the engine master switch was turned on. At that time Captain Stokes terminated the ride, informing the crew that the ride was unsatisfactory. To that point the ride had been going very well.

Captain Stokes testified that the script he utilized as of April 1st called for the simulator to have the engine failure on the go-around in combination with a loss of oil quantity in that engine. The loss of oil would have been an indication of engine damage. It was not appropriate to attempt to restart a damaged engine as that could cause an even more hazardous situation than previously existed.

Failing to recognize the low oil quantity which constituted the indication of a damaged engine and then attempting to relight the damaged engine constituted a failure of the PPC. Captain Stokes had previously consulted a Transport Canada inspector, Mr. G. Scott, who had confirmed that scenario.

During his preparation for the hearing Captain Hall elicited information regarding the engine from the engine manufacturer, General Electric (GE). He posed several questions and hypothetical situations regarding the oil system's function in this particular model engine. An engineer from GE responded to those questions. Captain Hall sought to enter into evidence the questions and answers given by the engineer (Exhibits D-3 and D-4).

That evidence is hearsay as it is a written statement made by a person, who has not given testimony at the hearing, in which it is offered, but is offered as proof of the assertions made in the statement. The relaxed evidentiary rules of the Civil Aviation Tribunal allow the admission of hearsay evidence.

The basic criterion for admissibility of evidence is that it must be relevant. In this case the documents offered are relevant as they have a direct bearing on certain issues in the case. However, the author was not present to be cross-examined on his findings, or his assumptions in coming to his conclusion. The Minister's representative has no opportunity to pose alternative hypotheses to him. As a result, although admissible, the evidence must be accorded less weight than the direct testimony of the parties.

It was established the Flight Crew Operating Manuals (FCOM) did not directly address the scenario given. In addressing engine failure FCOM 3.02.70 (Exhibit D-5) provides that engine damage may be accompanied by explosion, significant increase in aircraft vibrations, repeated engine stalls, associated abnormal indications such as hydraulic fluid loss, no N2 indication. Absent is any mention of oil quantity or oil loss. As well the standard operating procedures (SOPs) do not address the particular scenario. In questioning by First Officer Voce, Captain Stokes agreed that it was not covered in the manuals or other publications available to the pilots. However, he insisted that it was covered in training and was a subject of question and answer material provided before the PPC.

Captain Hall queried the lack of additional indicia of engine failure such as accompanying engine vibration or N1 and N2 indication. He asserted that the evidence given by GE proved vibration would be part of indication. As well the GE evidence proved that the oil loss portion of the malfunction was virtually impossible, unless there was a fan blade failure or major foreign object damage (FOD) in proximity to the oil tank or lines. In that answer the GE representative allowed that maintenance error causing complete oil loss has occurred.

During cross-examination, Captain Hall attempted to obtain an agreement from Captain Stokes that an engine failure does not necessarily create a low oil quantity or vice versa. That is neither alone, will create the other, that they are unrelated. Captain Stokes replied that eventually one would lead to the other, and further that the engine and simulator manufacturers programmed the faults in conjunction with one another. When queried regarding why the restart would create a more dangerous situation he replied that there would ultimately be a seizure and fire but allowed that it would probably not be immediate.

Regarding the FCOMs (D-5) description of indicia of engine damage, Captain Hall asked whether the failure to notice hydraulic fluid loss as an associated abnormal indication of engine damage before a relight attempt would result in an unsatisfactory assessment. Captain Stokes replied that it would not.

THE LAW

Aeronautics Act 7.1(1)(b):

7.1 (1) Where the Minister decides

(...)

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

(...)

the Minister shall, by personal service or by registered or certified mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister's decision.

ARGUMENT

For the Minister

Mr. Pratt noted that both pilots had failed to observe the lack of oil quantity before attempting a relight of the affected engine. He reminded me that the check Captain testified that relighting a damaged engine which was indicated by no oil quantity would result in a more hazardous situation occurring. He argued that these were uncontroverted facts which lead to an unsatisfactory assessment of the ride. Therefore, he urged me to uphold the Minister's decision.

For the Applicant

Captain Hall argued on several fronts. He asserted that according to the GE engineer, engine damage would be accompanied by increased engine vibration, yet they did not experience such vibration. He maintains that during testing he is entitled to all the indications which would normally be present to allow him to assess the situation properly.

The flameout and subsequent zero oil quantity really amounted to two unrelated failures and that it was improper to impose unrelated failures in the testing scenario.

He argued that although it was not recommended to relight an engine with no oil, it was not prohibited to do so. As well, since there was not an indication of abnormal oil pressure he did not see how the situation could become more hazardous.

Captain Hall maintains that an anomaly exists in the criteria for unsatisfactory assessment. He elicited from Captain Stokes an admission that, if a crew had not checked for hydraulic fluid loss, which is one of the associated abnormal indications listed in the FCOM that may accompany engine damage, failing to do so would not have resulted in an unsatisfactory assessment. But, having failed to check the oil quantity, which is not listed in the FCOM as an associated abnormal indication regarding engine damage, would and did result in an unsatisfactory assessment.

He points out that there is no FCOM or SOP guidance on the specific issue. That point was reiterated by First Officer Voce's arguments. He maintained that there was nothing in any publication available to him which addressed the issue. He also submitted that to find their actions unsatisfactory would be to counter Airbus philosophy. That was illustrated as low oil quantity and brought to the crew's attention by a pulsating green signal on the ECAM which indicated to them that the situation was not serious but required monitoring.

He took exception to Captain Stoke's testimony that the particular scenario had been covered in training, asserting that it had not been. According to him, the events had really been two separate failures and that for proper recognition other indications were needed.

DISCUSSION

The issue to be decided is whether on April 20, 1999 the crew's action in attempting to relight a damaged engine fell below the standard required to achieve a satisfactory rating.

It is common ground from both parties that up until the attempted relight of the engine, the ride was going very well. The crew does not dispute that they failed to observe the lack of oil quantity in the engine before they attempted to relight the engine but rather disputes that attempting to relight in that configuration should be assessed as unsatisfactory performance.

Captain Hall argued that an engine failure with oil loss would have been accompanied by other indications such as oil pressure and temperature variations and increased engine vibration. Evidence to support that is drawn from the questions and answers that Captain Hall posed to a representative of the engine manufacturer (GE). Further evidence regarding the oil system and engine interaction came from that source. As previously discussed that evidence although admissible is hearsay. We do not know the hypothesis made in coming to the conclusions. Mr. Pratt was not able to cross-examine the representative to test the validity of the hypothesis or the conclusion drawn.

Question and answer #2 of that evidence will help to illustrate the problem. It states (Exhibit D-3):

Question

2. Has it ever occurred that as a result of engine damage on the CFM56, that oil quantity go from full to zero oil in a very short period of time, ie less than 10 seconds? If not, is it theoretically possible for this to occur and what type of malfunction could cause such a problem?

Answer

2. It is theoretically possible that a fan blade failure in a certain circumferential location or a major FOD event could take out the oil tank or major oil lines and result in a oil loss in the range of 10 seconds. To my knowledge, such an event has never occurred in CFM56 revenue service. Such an event would result in severe vibration due to fan rotor imbalance. Complete oil loss (because of maintenance error) has occurred on CFM engines in relatively short periods of time (on the order of 10 to 30 minutes).

The question presupposes that as a result of engine damage, the oil quantity goes to zero in a short period of time. What if the opposite situation occurred? Given the information in the answer one could, on cross-examination, ask:

"If complete oil loss occurred because of maintenance error would engine damage result?"

That illustrates the frailty of hearsay evidence as the evidence is only in response to one hypothetical situation. The answer might be quite different were another hypothetical question posed. Therefore, there is no definitive evidence that the particular damage in this scenario would necessarily be accompanied by indications such as vibration. What is available to me is Captain Stokes's testimony in cross-examination that the engine and simulator manufacturer collaborate on the input to the simulator. This is corroborated by GE evidence at answer #1 where it states in part: "Flight Warning Computer logic is the prerogative of the aircraft manufacturer."

For reasons not in evidence before me it appears that the simulator was not programmed to give additional indicia in this particular failure.

The crew also argued that there was no prohibition on the relight of an engine with zero oil quantity. This was supported by the question and answer to GE at #5 where the answer indicated the engine will start with zero oil quantity and an engine had run for nearly one hour with zero oil quantity and pressure. That argument misses the point entirely. The issue was restarting a damaged engine and in this instance the crew has no knowledge of the type or extent of the damage. The zero oil quantity was only the indicator of the damage.

That being said one must question the wisdom of restarting an engine with zero oil quantity in any case, as the lack of oil quantity would lead to loss of oil pressure which would drive the crew procedurally to shut down the engine again (D-4, #3).

First Officer Voce pointed out that the FCOM material (D-5) did not directly address the lack of oil quantity as an indicator of engine damage. That is correct as it states at 3.02.70:

Engine damage may be accompanied by:

(...)

– associated abnormal indications such as hydraulic fluid loss, no N2 indication.

The use of "may be accompanied" and "such as" shows that the list was not meant to be exhaustive but simply provide some possible illustrations.

It was the evidence of Captain Stokes that the information regarding the zero oil quantity/damage was a subject in training and was addressed in the question and answer period the day before training.

Captain Hall and First Officer Voce contended that they did not receive that training. Captain Stokes maintained that the scenario in the script was given to many other crews and none of them attempted to restart the engine. As information on the particular problem is not available in the FCOM or other publications, these other crews must have been made aware through the training or question and answer periods. The crew argues that the others doing their PPCs had heard of their dilemma by word of mouth and were then able to respond correctly to the scenario in the script. As the evidence is that none of the other crews fell prey to this error, I think more likely that training was provided, than that each and every crew learned by word of mouth. Additionally the evidence indicates that the script was being utilized as of April 1st. As this PPC was on April 20, some PPCs predated this one.

I do not impugn the honesty of these gentlemen in stating that they did not receive training. It would appear that for some unknown reason or oversight the scenario was not taught to them.

Captain Stokes's evidence was that an unsatisfactory assessment was appropriate where a relight attempt was made on a damaged engine. On that point he had consulted a Transport Canada inspector, Mr. Geoff Scott. Captain Hall and First Officer Voce admitted that they were going to relight the engine. By doing so, they fell below the accepted standard expected of them in the particular circumstance. In the result I must uphold the Minister's decision.

However, the crew has correctly pointed out that the FCOM and other material available to the pilots do not cover the precise point in question. Captain Stokes agreed that all available indications should be given to crew to allow them to assess properly any malfunction. It would seem that there is a lacunae in both the publications and systems programming regarding this particular scenario. Given that, I fully understand their quest to have the unsatisfactory assessment rescinded.

I thank the parties for their competent professional presentation of these matters.

DETERMINATION

I confirm the Minister's decision to issue an unsatisfactory assessment of the PPC of April 20, 1999

  • in the case of Roger C. Hall
  • in the case of Joseph Voce

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal