Decisions

TATC File No. O-2896-41
MoT File No. PAP5504-048672

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Standard Ag Helicopter Inc., Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, ss. 605.06, 605.94(1)

Journey log entries


Review Determination
John D. Issenman


Decision: June 28, 2004

The Minister of Transport has proven on a balance of probabilities that Standard AG Helicopters Inc. did contravene section 605.06 and subsection 605.94(1) of the Canadian Aviation Regulations. The monetary penalties assessed by the Minister of $1,250.00 for contravention of section 605.06 and $500.00 for contravention of subsection 605.94(1) shall stand. The total penalty of $1,750.00 is to be made payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty days of service of this determination.

A review hearing on the above matter was held Tuesday, February 3, 2004 at 10:00 hours at the Federal Court of Canada in Toronto, Ontario.

BACKGROUND

On July 25, 2002, Mr. Standard conducted a take-off in an aircraft bearing the registration C-GMLS that was in his custody and control when aircraft equipment required by the regulations was not serviceable and, where required by operational circumstances, functioning.

Mr. Standard took off in the subject aircraft when the fuel gauge in the aircraft was functioning intermittently.

As well, Mr. Standard failed to note in the aircraft journey log book the defect represented by the intermittently functioning fuel gauge.

Shortly after conducting several flights in the subject aircraft, Mr. Standard, while operating on a long-line mission with minimum fuel on board, experienced two (2) successive power losses within a few seconds in the subject aircraft engine, resulting in a crash that destroyed the aircraft. This took place while Standard AG Helicopter Inc. was operating on a North American Free Trade Agreement (NAFTA) permit in the USA.

The Federal Aviation Administration (FAA), National Transportation Safety Board (NTSB), Transport Canada and Transportation Safety Board of Canada (TSB) all eventually became involved in the investigation of the occurrence, to some extent or another. This resulted in the identification of the contravention to the regulations.

One week prior to the above noted flight, and then again just one day before the above noted flight, Mr. Standard observed intermittent fluctuations of the fuel gauge which he did not note in the journey log book or have successfully repaired or replaced.

While operations of the nature undertaken by Mr. Standard often require minimum fuel on board to accommodate the vertical lift of heavy, underslung objects while out of ground effect, a serviceable and functioning fuel gauge is an essential component critical to the safety of the operation. This was understood by Mr. Standard who, to his credit, fashioned a fuel quantity dip-stick from a piece of wood and, further attempted to minimize his risk exposure by calibrating the flow rate of his refuelling equipment to get a better understanding of the quantity of fuel he had on board.

Regrettably, none of these makeshift measures prevented the accident that destroyed C-GMLS and injured Mr. Standard.

At the time of the occurrence, Mr. Standard was President of Standard AG Helicopter Inc., one of its full-time pilots, and the Person Responsible for Maintenance (PRM) as granted by Transport Canada. It is this last additional position / responsibility (PRM) that presents the greatest challenge to Mr. Standard's claims that he did not feel he was required to repair / replace the intermittent fuel gauge. As the PRM for his company, and a former USA licensed maintenance professional, the importance of a mission critical instrument should have been clear to him.

THE LAW

Section 605.06 of the Canadian Aviation Regulations (CARs) states, in part, that:

605.06 No person shall conduct a take-off in an aircraft, or permit another person to conduct a take-off in an aircraft in their custody and control, unless the aircraft equipment required by these Regulations

(a) meets the applicable standards of airworthiness; and

(b) is serviceable and, where required by operational circumstances, functioning, except if otherwise provided in section 605.08, 605.09 or 605.10.

Subsection 605.94(1) states, in part, that:

605.94 (1) The particulars set out in column I of an item in Schedule I to this Division shall be recorded in the journey log at the time set out in column II of the item and by the person responsible for making entries set out in column III of that item.

EVIDENCE

No pre-hearing conferences took place nor were there any agreed statements of fact.

Witness testimony given, submissions by the parties, and documentary evidence submitted and agreed upon are the sole basis for this determination.

As stated in oral testimony, and as agreed upon by both parties, and as evidenced by Exhibit M-1, Mr. Standard did not comply with subsection 605.94(1) of the CARs. While Mr. Standard in his evidence detailed his belief that he was not intentionally breaking any of the regulations, he did fail to make the appropriate entries in the journey log.

The Case Presenting Officer for the Minister has clearly proven, on a balance of probabilities, that the appropriate journey log entry was not made. Since both parties agree on this, notwithstanding the absence of intent, there is little need to further review this item.

With respect to the charge that the operator contravened section 605.06 of the CARs, neither party disputes that the aircraft was flown with a fuel gauge that was intermittent. There has been significant discussion on what "intermittent" might mean. There is evidence to support that additional care was taken by Mr. Standard to ensure he knew, to the best of his ability, how much fuel was in the tank as frequently as he could check.

Notwithstanding this, he did fly for more than one week knowing that the intermittent fuel gauge did not function as required (albeit during pre-flight check initially). He had that same problem occur only one day prior to the accident flight, and knowing it might recur, still did not take any appropriate, approved maintenance action to make the aircraft serviceable.

A significant amount of evidence was provided to try to determine how much fuel was actually on the aircraft at the time of the engine failures.

Given the many different calculations used to identify fuel consumption, filler pump flow rates, dip-stick measurement accuracy and the residual fuel on board post-crash, and the inaccuracies in some of the formulae presented, very little weight was given to this evidence.

Evidence submitted by the Minister proves a chain of regulatory / certification evolution arriving at the requirements / regulations in effect at the time of the fated flight. There can be no doubt that the aircraft was certified upon manufacture with a requirement for a functioning and serviceable fuel gauge. Additional evidence provided demonstrated the direct connection between the certification of the aircraft type and its operations manual, a copy of which was required to be on board the aircraft at all times, and confirmed to be in place by Mr. Standard.

In addition, page 16 of the Standard AG Helicopter Inc. maintenance control manual (MCM) clearly directs the action(s) required by individuals within the company upon discovering any item that is unserviceable. The fact that Mr. Standard was the PRM when this document was submitted by his company to Transport Canada for approval, and subsequently agreed upon, weighs heavily on the reasonable expectation that he understood and agreed to comply with its requirements.

Nothing presented by the Respondent removed him from taking on the bulk of the responsibility for having continued to operate in the absence of a fully serviceable fuel gauge.

DISCUSSION

Given the fact both parties agree that entries required by regulation were not made, and, notwithstanding the considerable time spent discussing this during the hearing, the case presented on behalf of the Minister overwhelmingly supports the charge that subsection 605.94(1) of the CARs was in fact violated.

Arguments concerning the nature of entries required by this Regulation were made with the Respondent's case presenter providing his interpretation of what was "intermittent" vs what was "unserviceable."

As well, significant time was allowed to ensure the Tribunal was made aware of the different effect of regulations on transoceanic 767 operations between major airports where maintenance staff presumably had superior resources to that of a helicopter pilot operating alone in the field. While this was interesting, it did not in and of itself excuse the pilot / owner / PRM from making entries required by regulation and his own MCM nor did it provide the evidence necessary to convince the Hearing Officer that an intermittent fuel gauge is a "serviceable" part.

DETERMINATION

Upon conclusion of the said Review Hearing before this Tribunal, and given my review of witness testimony, submissions by the parties, and documentary evidence submitted and agreed upon, are collectively the only basis for this determination. I have determined the following:

The Minister of Transport has proven on a balance of probabilities that Standard AG Helicopters Inc. did contravene section 605.06 and subsection 605.94(1) of the CARs. The monetary penalties assessed by the Minister of $1,250.00 for contravention of section 605.06 and $500.00 for contravention of subsection 605.94(1) shall stand.

John D. Issenman
Member
Transportation Appeal Tribunal of Canada