Decisions

CAT File No. O-1927-33
MoT File No. PAP5504-P-112943-032876

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Brian St. Germain, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR/96-433. s. 602.11(2)

Ice on critical surface of an aircraft, Responsibility of pilot-in-command, De-icing


Review Determination
Elizabeth M. Wieben


Decision: July 24, 2000

The Minister has established on the balance of probabilities that HS 748 C-GDTD departed with some ice on the wing tips on the morning of December 16, 1998. I uphold the decision of the Minister to find a contravention of subsection 602.11(2) of the Canadian Aviation Regulations. In view of the contribution by Transport Canada to this incident, I reduce the fine to $300. 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 Thursday, June 22, 2000 at 10:00 hours, at City Hall in Thunder Bay, Ontario.

BACKGROUND

On December 16, 1998 at 1632Z aircraft HS 748 C-GDTD departed Sioux Lookout with Brian St. Germain as captain. Three Transport Canada Inspectors Loan, Wells and Parker were at the Sioux Lookout Airport prior to and at the time of take-off and it is alleged that C-GDTD departed with ice adhering to some parts of the critical surfaces. The aircraft had ice on it initially; however, Mr. St. Germain started the aircraft engines, and removed the ice adhering to the leading edge of the wings and tail by activating the de-icing boots. At dispute is how much ice, if any, remained after the boots were activated, whether any ice was removed by the solar method and whether any ice remained on the aircraft at the time of take-off.

A WASAYA Airways Ltd. (WASAYA) de-icing truck was available to the crew; however, the aircraft would have had to start the engines to taxi to the de-icing area as there was no tow available for the HS 748. The de-icing truck was not used.

The captain of the HS 748 has extensive experience in aviation in the northern areas of the country as do the Transport Canada inspectors making the allegations. There was a lot of aviation expertise and operational experience on the ramp at Sioux Lookout that morning.

Based on the reports of these three Transport Canada witnesses, Transport Canada carried out an investigation and issued a Notice of Assessment of Monetary Penalty of $1,000 for contravention of subsection 602.11(2) of the Canadian Aviation Regulations (CARs): "No person shall conduct or attempt to conduct a take-off in an aircraft that has frost, ice or snow adhering to any of its critical surfaces."

EVIDENCE

Transport Canada Inspector Jerry Loan testified that he was at Sioux Lookout December 16, 1998 for the purpose of monitoring ice removal in Northwestern Ontario and that the temperature was -3 to -5 degrees Celsius. He saw HS 748 aircraft C-GDTD on the tarmac, with no crew around it and noted that the aircraft had ice on the left wing leading edge from wing tip to nacelle, ice between the nacelle and fuselage, that there was also ice on the right wing leading edge from the wing tip to the nacelle and from the nacelle to the fuselage. He testified that this ice was ¼ to ½ inch thick at the centre of the leading edge and that it went 2–4 inches in curvature around the wing. He stated that it seemed to be impact rime ice, that it was hard and that it would not break off by hand. He also stated that the boots stop 30 inches to 40 inches away from the wing tip and that although neither wing tip had boots, each wing tip had leading edge ice.

Inspector Loan further testified that Mr. St. Germain started the aircraft engines, cycled the de-icing boots and that he then noticed that where the boots were located, a majority of the ice came off the aeroplane; however, the aircraft still had leading edge ice on the wing tips and leading edge ice between the nacelle and fuselage. Specifically, he testified that the aircraft still had leading edge ice on the last 40 inches on the right wing tip, that there was still ice on the left wing tip, and that ice remained on the right wing between the engine nacelle and fuselage.

Inspector Loan also testified that he watched the aircraft taxi out, take off and climb out. He admitted that he could not see the aircraft turn in one continuous motion from the taxi for take-off, but that he heard no change in engine noise and that the flight service station (FSS) told him the aircraft departed in one continuous motion. He testified that it took three minutes for the aircraft to taxi from the ramp to take-off. Mr. Loan's testimony was not refuted in cross-examination, and his notes entered as an exhibit support his testimony.

The second witness for the Minister was Inspector Wells. Mr. Wells testified that the temperature was just below freezing and that he saw the HS 748 C-GDTD December 16, 1998 with "a fair bit of ice" 1 inch to 1¼ inch on all leading edges. He testified that he had a discussion with the captain, Mr. St. Germain, regarding de-icing and that the captain advised him that he would be de-icing by cycling the de-icing boots. He testified that he also asked the captain "What about the ice where there are no boots?" and that he was told it was not necessary. Mr. Wells testified that Mr. St. Germain started the engines, cycled the boots and that he (Wells) was surprised by the efficiency of the boots which took off 95% of the ice off the booted area. Inspector Wells also stated that no ice came off the three-foot leading edge of the wing tip or off the non-booted area of the tail. He testified that ice remained on the aircraft about 40 inches from the wing tips, from the nacelle to the wing root on each side and also a small area on the end of the horizontal and vertical stabilizer on the tail. He testified that when the aircraft taxied out, the portion without the boots still had ice. Inspector Wells also testified that after starting the engine and cycling the boots, Mr. St. Germain gave him the signal "thumbs up" and that he gave Mr. St. Germain the signal "thumbs up" back. Mr. Wells said he took the question of the "thumbs up" to be "Did the boots work?" and gave the signal back to indicate the boots worked.

The third witness for Transport Canada was Inspector Parker. Mr. Parker testified that he was on the ramp December 16, 1998 and saw the HS 748 with rime impact ice on the leading edges. He said that the crew decided to de-ice by using the boots and that after the engines were started and the boots cycled, ice remained on the non-booted area. Mr. Parker also commented that the ice on the tarmac was not melting at the time. He testified that the aircraft taxied toward the runway with ice on the non-booted areas; however, under cross-examination could not say how much ice was on the aeroplane.

Mr. Brian St. Germain testified on his own behalf. He indicated that he had picked up a small amount of rime ice, about 1 inch to 1¼ inch width and 1/8 inch thickness on his approach into Sioux Lookout Airport about 09:00 hours local. He testified that he went to the terminal building and left the aircraft to sit in solar heat. After returning to the aircraft about one hour later, a discussion ensued between the inspectors and Mr. St. Germain regarding the necessity and best method of de-icing required at this time. Mr. St. Germain stated that he observed the ice on the tailplane starting to melt and he also testified that Mr. Wells commented on some ice melt on the tail.

Mr. St. Germain testified that he started the engines, exercised the boots, got 85% to 90% of the ice off the entire booted area, that there was some ice on the right wing, that he cycled the boots again and that the residual ice on the right wing was shed.

Mr. St. Germain testified that after he cycled the boots a second time, Mr. Wells nodded (as if in affirmation) and that to confirm that, St. Germain raised his thumb in a "thumbs up" signal. Mr. Wells put his thumb up. Mr. St. Germain took this to be a "wave-off" that all was well.

Mr. St. Germain testified that in the take-off position, he confirmed that the left wing was clean, that Jason Young (co-pilot) confirmed that the right wing was clean and that the flight attendant confirmed that the aircraft was clean. Mr. St. Germain's statement that the aircraft was clean of contamination at the time of take-off is supported by letters from Jason Young and also the flight attendant Darla Guyan. These letters have limited weight however in evidence as these individuals were not present, could not be sworn and could not be cross-examined as to what exactly they saw, or how they made those observations.

Mr. St. Germain testified that he was using the solar heat method as per the WASAYA Company Operations Manual to complete the de-icing of the aircraft.

DISCUSSION

In his opening remarks Mr. St. Germain made the statement "I am not a risk taker." None of the evidence in this hearing refutes that statement. I did not see any evidence that either Transport Canada or Mr. St. Germain's crew felt that safety was being compromised. Three experienced Transport Canada inspectors did nothing to stop the aircraft from departing which I am sure they would have if they felt anyone's life was at risk. No one in the HS 748, i.e. the co-pilot or flight attendant attempted to indicate that they were alarmed or at risk. The de-icing truck driver did not attempt to talk to the captain or aircraft crew.

The issue appears rather to be the "clean aircraft concept." Previous legislation permitted take-off and flight as long as safety was not adversely affected. Basically until the Dryden air crash and Mr. Moshansky's report[1] and the subsequent changes in legislation, the aircraft captain was permitted to make the decision on how much ice was too much ice. Enroute aircraft which are certified for flight into known icing conditions still fly with ice, using the de-icing and anti-icing systems to minimize the impact of the ice. The requirement is that one must not take off or attempt to take off unless the aeroplane is free of ice, snow or frost adhering to any of its critical surfaces. A generation or two of Canadian pilots have flown with ice on the aircraft and there is some reluctance to comply with a "clean aircraft regulation" particularly when the aircraft is perceived to carry ice well or the ice is minimal.

Both parties agreed that the boots took off the ice very well where the aircraft was booted and that little ice remained in these areas. Mr. St. Germain and Mr. Wells (during cross-examination) each made comments about some melting on the tail. This was just prior to start and taxi-out. There was no evidence by anyone that it was melting anywhere else. Mr. Wells at the left wing tip and Mr. Loan at the right wing tip said in sworn testimony that the aircraft taxied out to take off with ice on the outer three feet of the wing tips.

The aircraft took off 3–4 minutes later at 1632 Z. There was no change in noise level, and FSS reported that the aircraft departed in one continuous motion. Mr. St. Germain testified that he looked out the left wing prior to take-off and that the co-pilot looked out the right wing. The co-pilot was not there to testify. The wing tips of the aircraft are silver aluminum and it would be difficult given the size of the aircraft and the length of the wing to identify from the cockpit seat whether or not ice remained on the wing tips. There was no attempt to de-ice the wing tips with de-icing fluid. The temperature of the day (-2 degrees at 10:00 local time) at just below freezing was not conducive to melting ice on bare aluminum in three to four minutes. The tail area is booted almost completely to the top of the vertical stabilizer and also almost to the complete tip on the horizontal stabilizer. The sun appeared to have started to work on any excess ice on the tail.

Mr. St. Germain admitted under cross-examination that he was not under pressure of time, that this was not an urgent trip, and that it was in fact just three crew members going back to Thunder Bay. He indicated that he was using the solar method of heat ice removal. It would seem more reasonable given the temperature, time of day, and the fact that the clouds were scattering out that if he expected solar heat to work that he would wait for the sun to complete the de-icing, inspect the aircraft and take off.

Evidence supports that the aircraft taxied out with ice on the wing tips at least and likely took off with this same ice. The law has removed any discretion by the pilot to decide if a "little ice" is o.k. and specifically states that the aircraft must be completely clean. Airports across the country have set up elaborate systems to ensure that this will happen.

There is some evidence that at least one inspector made inflammatory remarks to the pilot-in-command, which might tempt him to proceed when he might otherwise have not. There is also evidence on both sides that Inspector Wells gave a "thumbs up" signal after the boots had been activated. The thumbs up signal is common in aviation and generally indicates all o.k. It would be reasonable for Mr. St. Germain to conclude that Mr. Wells at least was in agreement with his departure, especially in the absence of any signals to the contrary from the other inspectors. However, this signal does not relieve the captain of his responsibility to depart with a clean aeroplane. Mr. St. Germain did not verify for himself with certainty that the wing tips and tail were clear of ice prior to take-off, at least not in any way supported by sworn evidence. I feel that the actions of the Transport Canada inspectors contributed to the likelihood of the aircraft departing and that they bear some responsibility to refrain from inflammatory remarks, and either to refrain from making signals to the captain or to make a shutdown signal if there is still ice they see on the wings.

The final decision rests with the crew and in particular the captain. The captain is responsible for the departure of the aircraft with any ice that was on it that morning December 16, 1998.

DETERMINATION

The Minister has established on the balance of probabilities that HS 748 C-GDTD departed with some ice on the wing tips on the morning of December 16, 1998. I uphold the decision of the Minister to find a contravention of subsection 602.11(2) of the CARs. In view of the contribution by Transport Canada to this incident, I reduce the fine to $300.

Elizabeth M. Wieben
Member
Civil Aviation Tribunal


[1] Commission of Inquiry into the Air Ontario Crash at Dryden, Ontario, Final Report, The Honourable Virgil P. Moshansky, Commissioner (1992).