Decisions

TATC File No. O-3186-02
MoT File No. PAP 5504-55370

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Frank Bellantoni, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, s. 602.01

VFR Flight, Negligent or Reckless Operation of an Aircraft, Balloon


Review Determination
Hebb C. Russell


Decision: July 25, 2006

Mr. Bellantoni did operate balloon C-GFNH in a reckless manner when available aviation weather reports indicated that operations could endanger or be likely to endanger the life or property of any person. The 30‑day suspension is confirmed. Said suspension shall begin on the thirty-fifth day following service of this determination.

BACKGROUND

A notice of suspension dated August 9, 2005, was registered to the applicant, Frank Bellantoni, advising him that he was being assessed a 30-day licence suspension for an alleged contravention of section 602.01 of the Canadian Aviation Regulations (CARs) on the following grounds:

Canadian Aviation Regulation 602.01 in that, on or about October 8, 2004, at or near Ottawa, Ontario, at approximately 0728 local time, you operated an aircraft, to wit, a Cameron Balloon, bearing Canadian registration marks C-GFNH, in such a reckless or negligent manner in that available aviation weather reports, winds and temperature indicated that operations could endanger or be likely to endanger the life or property of any person.

EVIDENCE

Minister of Transport

The case presenting officer, Michael Roach, called the first witness, Gisele Whorley, aviation enforcement inspector, Transport Canada, and presented a ring binder divided into 17 sections. For ease of reference, this single exhibit is listed and referred to as Exhibit A-1 to 17.

Exhibit A-13 includes:

A Terminal Aerodrome Forecast (TAF) is the standard code used throughout the world to report aerodrome forecasts. It describes the weather conditions most likely to occur within five nautical miles of the centre of the runway complex.

METAR is a surface weather observation issued on the hour, while SPECI is a special observation, issued at times other than on the hour, as the result of a significant weather change.

FD are alphanumeric forecasts of wind and temperature aloft for various altitudes. The flight levels available are for the low level: 3 000 feet, 6 000 feet, 9 000 feet, etc.

Ottawa International Airport actual weather reports for October 8, 2004

At 0600 local time, wind 190 degrees (out of the south) at a speed of 6 knots (nautical miles an hour), the visibility more than 6 statute miles in mist with a few clouds at 2 400 feet, temperature of 12 degrees Celsius and a dew point of 12 degrees Celsius, altimeter reading of 30.29 inches of mercury.

At 0700 local time, wind was 160 degrees (out of the southeast) at a speed of 4 knots and the visibility was now 4 statute miles with a few clouds at 1 800 feet, temperature and dew point were the same at 12 degrees Celsius, altimeter reading of 30.30 inches of mercury.

Ottawa International Airport forecast for October 8, 2004

At 0400 local time, valid for 0500 local time on October 8th, until 0600 local time on October 9th, wind was 200 degrees at 5 knots, more than 6 statute miles visibility, scattered cloud at 24 000 feet and a 30 percent probability between 0500 and 0900 local time, : mile visibility in mist becoming between 1200 and 1400 local time, winds 200 degrees at 10 knots gusting to 20 knots.

At 0712 local time, an amended forecast was produced that was valid from 0700 to 0900 local time, wind 200 degrees at 5 knots, more than 6 statute miles visibility, a few clouds at 18 000 feet and temporarily between 0700 and 0900 local time, visibility of 2 statute miles in mist, a 30 percent probability of : statute mile visibility in mist, between 0700 and 0900 local time.

Gatineau, Québec Airport actual weather reports for October 8, 2004

Note C There were no published actual weather reports during the night prior to 0600 local time on October 8, 2004.

At 0600 local time, winds calm, visibility c statute mile in fog, sky clear above the fog, temperature and dew point were the same at 6 degrees Celsius, altimeter reading of 30.30 inches of mercury.

A special report issued at 0648 local time, winds calm, visibility 2 statute mile in fog, sky clear above the fog.

At 0700 local time, winds calm, visibility 2 statute mile in fog, sky clear above, temperature and dew point were the same at 6 degrees Celsius, altimeter reading of 30.31 inches of mercury

A special report issued at 0723 local time, winds calm, visibility 3 statute mile in fog, sky clear above the fog.

Gatineau, Québec Airport forecast for October 8, 2004

The first issued forecast for the Gatineau Airport for October 8, 2004 was at 0753 local time, valid for 0800 on October 8th, until midnight, winds variable at 3 knots, 2 statute mile visibility in fog, scattered cloud at 22 000 feet, temporarily between 0800 and 0900 local time, visibility 3 statute miles in mist becoming between 0900 and 1000 local time, winds 200 degrees at 8 knots, visibility better than 6 statute miles to the north and southwest.

Inspector Whorley stated the minimum visibility for VFR flight in controlled airspace is 3 statute miles and a minimum cloud ceiling of 1 000 feet. These visibility and ceiling minimums are for all aircraft, including balloons.

The respondent called two witnesses, Sharon Joy and Sandra Lambert, both of whom were passengers on board the flight in question. As there were no objections made by the applicant to any testimony made by any witnesses or to exhibits presented by the respondent, this member is accepting what was said as being a true description of the events that transpired on the balloon flight in question.

Both witnesses stated that they were passengers on balloon C-GFNH at 0728 on October 8, 2004, and that they were informed by the applicant that the intended destination for this flight was the Québec side of the Ottawa River in the vicinity of Gatineau Airport, Québec. The applicant also stated to them that the chase crew were being dispatched to the Québec side of the river in anticipation of their arrival with two vehicles.

The balloon lifted off from Carleton University and slowly drifted over Dows Lake which looked like a mirror. You could see pockets of mist in the area. The pilot stated that he was going to go higher to get more wind. The wind took the balloon in a northeasterly direction. Looking towards the Ottawa River, you could see a fog bank with the Parliament buildings coming through the fog. As they headed over the Ottawa River, they were in light fog and Mr. Bellantoni said he was going down to see if he could get below it. As they were descending, the fog bank was fairly heavy right to the ground. They were over a residential area at an altitude of 200 to 300 feet. The cars and houses were quite visible. The pilot increased altitude again taking them over the water. As the altitude increased, there was no visibility, they could see the shadow of the balloon in the cloud or fog. The pilot descended again and indicated he was looking for or was near Duck Island. They continued their descent fairly rapidly and the water of the Ottawa River became visible at about 20 feet. Mr. Bellantoni called for everyone to bend their knees as they were going to hit. They hit the water hard with a jolt. Because of the configuration of the basket, all the weight of the passengers is located at the front of the basket so that when the basket hit the water, it submerged about three quarters of the way up its leading edge. Everyone in the basket was soaked up to at least their waist. The pilot, at the back of the basket, had less weight so he was soaked up to his knees. The estimated time the passengers spent in the water was one to two minutes.

At this time, the pilot got the basket out of the water by using many blasts from both heaters and releasing air through the flaps.

Mr. Bellantoni brought the balloon back down to just above the surface of the water. After some time, they gradually could see shadows and the outline of trees. He then raised the balloon up to an altitude of 40 to 50 feet and through manoeuvring, brought the balloon to the shoreline near the Aviation Parkway. At this point, there was very little wind and they had difficultly in getting to a point where they could land. Mr. Bellantoni set the balloon down on the asphalt of the parkway where one of the passengers got out of the basket and assisted in pushing the balloon off onto a grassy area.

Applicant's argument

The applicant testified that, between the time of 0500 and 0600 local time on the morning of the flight, he did check the Ottawa area weather and that it was forecast to remain VFR for the flight. Mr. Bellantoni also testified that the weather looked good and that he did not obtain any weather updates following his initial weather check. He also testified that he did not check the Gatineau weather.

Mr. Bellantoni testified that the flight included eight passengers as well as himself, making a total of nine people on board. He also stated that he did obtain a take-off clearance from the Ottawa tower as required and that a second call was made at 1 000 feet after lift-off. At the time of lift-off, the visibility was good on the Ottawa side of the Ottawa River and to the south with fog by the river. Once airborne, there were no suitable landing locations which prevented the possibility of an immediate landing as their route took them over Dows Lake and the buildings of downtown Ottawa. With only the wind steering the balloon, the only option available at that time was to climb in order to find a landing spot away from the fog. After obtaining a clearance from Ottawa tower and climbing to 3 000 feet, Mr. Bellantoni found the winds were brisk, changing direction from northwest to northeast to east, so he decided to descend. After obtaining a clearance from the Ottawa tower, he descended from 3 000 feet to within a couple hundred feet above the ground. The wind brought the balloon into the wall of fog at this point. The visibility was poor but he could see they had crossed the parkway, so he now knew they were over the Ottawa River where he knew there were no power lines. He continued descending but added heat to slow the rate of descent where he estimates they were descending at 50 feet per minute when they splashed into the water, which he described as an average landing. As there is a delay in the reaction time when adding heat to a balloon, he estimated they were in the water for 30 seconds to a minute before the balloon was able to lift the gondola out of the water. He also estimated that the 30 seconds of heat that he added to the balloon was too much in that when all of the water drained out of the gondola, the balloon lifted quickly back up into the fog.

Mr. Bellantoni then descended the balloon slowly back down to the surface of the water after which they drifted back in the direction of land. Approaching land, he lifted the balloon over trees and finally landed on Aviation Parkway just east of the Rockcliffe Airport.

Mr. Bellantoni contends that he did not endanger or do any harm to any persons or property, since he did check the Ottawa International Airport weather and he did depart under VFR conditions. Therefore he felt it was a legal launch. Although he did not check the Gatineau weather prior to departing, the TAF for Gatineau Airport was forecasting it to become VFR. He stated that the winds for an airport (Ottawa) were specifically for that airport only.

THE LAW

Section 602.01 of the CARs:

602.01 No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

DISCUSSION

The applicant testified that between the time of 0500 and 0600 local time on October 8, 2004, he did check the Ottawa aviation weather.

The applicant also stated that he did not check his destination weather which was Gatineau, Québec.

This member agrees with Mr. Bellantoni in that he did legally depart under VFR conditions. However, Mr. Bellantoni did acknowledge that he was aware from the Ottawa Airport forecast (TAF) that there was a 30 percent probability of fog developing in the area for the time period of his planned flight. Also, it is this member's opinion that, as a qualified pilot, Mr. Bellantoni had to understand that when the difference between the temperature and dew point is only one degree Celsius, combined with light or no wind conditions, the atmospheric conditions are favourable for the development of radiation fog.

Mr. Bellantoni testified that neither he nor balloon C-GFNH were certified for IFR flight.

The first reported weather (METAR) for the Gatineau Airport was issued at 0600 local time and it showed zero wind and c statute mile in fog; the sky was clear above (the fog) with the temperature and due point at 6 degrees respectively. Between 0600 and 0723 local time on the morning of the flight in question, there were four published reports on Gatineau weather and all showed the winds calm and visibility not above 2 mile in fog.

It is this member=s opinion that the respondent is correct and justified in its claim that by not checking the intended destination weather, Mr. Bellantoni did operate balloon C-GFNH in a reckless or negligent manner. All available aviation weather reports either forecast a 30 percent chance of IFR conditions due to fog or reported winds, temperature and dew point, that when combined, all indicated a high probability of fog developing on his intended route and at his destination.

Furthermore, his intended destination was reporting conditions that were well below VFR flight conditions. Therefore, Mr. Bellantoni did operate his flight in such a way as to endanger or be likely to endanger the life or property of any person.

Mr. Bellantoni also stated that it was an unsafe and a dangerous situation when he was in the fog, and by doing so, he admitted that under his command, he placed C-GFNH and his passengers in an unsafe and dangerous situation. Therefore, the Minister has proven the element of Mr. Bellantoni violating section 602.01 of the CARs.

Therefore, with the elements of the offence proven that the applicant=s actions did endanger or were very likely to endanger the life or property of any person, the remaining issue to be decided is whether the actions of Mr. Bellantoni are to be considered reckless or negligent.

The Canadian Law Dictionary, referred to in Jason R. Newburg v. Minister of Transport, review determination, [1993], O-0415-02, contains the following definitions:

Negligence: Negligence is the omitting to do something that a reasonable man would do or the doing something which a reasonable man would not do ... It is really the absence of such care as it was the duty of the defendant to use....The care taken by a prudent man has always been the rule laid down - a regard to caution such as a man of ordinary prudence would observe.

Reckless: Marked by a lack of proper caution; careless of the consequences. In some cases the term insinuates more than carelessness, even going as far as to imply wilfulness. In this context the meaning may be indifferent to the consequences, mindless, not caring; very negligent; advertent negligence where the consequence was foreseen as possible but not desired. Reckless means grossly careless. The doing of something which in fact involves a risk, whether the doer realizes it or not.

This member finds that Mr. Bellantoni departed regardless of the consequences, and found that after climbing VFR to an altitude of 3 000 feet, he intentionally descended into IFR flight conditions that both he and his balloon were not qualified to do. Therefore, Mr. Bellantoni descended in unlawful flight conditions placing his balloon and passengers at great risk.

Furthermore, balloon C-GFNH was not required to carry nor did it carry any personal flotation devices and yet he intentionally landed the gondola with everyone on board into the Ottawa River, knowing the gondola alone would not support or provide sufficient flotation for all persons on board and that he had to rely on the burner heat to get everyone on board out of the water.

DETERMINATION

For the above reasons, I find that Mr. Bellantoni did act in a reckless manner whereby he did put balloon C-GFNH and everyone on board at risk while under his command.

I, therefore, find that Mr. Bellantoni did contravene section 602.01 of the CARs and that the notice of suspension dated August 9, 2005 is justified and the respondent is justified in assessing a 30-day licence suspension.

July 25, 2006

Hebb C. Russell

Member

Transportation Appeal Tribunal of Canada