Decisions

CAT File No. P-1729-33
MoT File No. EMIS 031509

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

John N. Mummery, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, ss. 4.1, 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)(b)

Low Flying, Jurisdiction, Foreign Airspace


Review Determination
E. David Dover


Decision: April 28, 1999

I find that John N. Mummery did contravene paragraph 602.14(2)(b) of the Canadian Aviation Regulations, and I confirm the Minister's decision to issue a monetary penalty of $250.00. That amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this Determination.

A Review Hearing on the above matter was held Friday, April 16, 1999 at 10:00 hours, at the Federal Court of Canada in Vancouver, British Columbia. The witnesses were sworn in by the attending court reporter.

BACKGROUND

On November 6, l998, a monetary penalty of $250.00 was assessed against Mr. J. Mummery, the Respondent, pursuant to section 7.7 of the Aeronautics Act, for having contravened paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARS).

Allegedly, Mr. Mummery:

at approximately 17:53 hours Pacific Daylight Time on 28 June 1998 near Point Roberts, Washington, USA, being the pilot of a Cessna 172 bearing the registration mark of C-GFVB, you did unlawfully fly the said aircraft at a distance of less than 500 feet from a vessel and its two occupants.

The incident took place in the Strait of Georgia, British Columbia approximately two miles from the nearest landfall. The vessel in question was proceeding on a north west track with two other ships trailing on the same course, the second or closest vessel, a sailboat, being approximately five miles astern. The aircraft was proceeding on a northerly heading and passed the lead vessel on its port (left) side.

THE LAW

Paragraph 602.14(2)(b) stipulates:

602.14 (1) For the purposes of this section and section 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons where that built-up area or open-air assembly of persons is within a horizontal distance of

(...)

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(...)

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

THE FACTS

The following facts were admitted and agreed to by both parties:

Aircraft registration C-GFVB Exhibits M-l/M-5

Aircraft type Cessna 172P Exhibit M-2

Owner Pacific Flying Club Exhibit M-2

Departure and arrival location Boundary Bay Airport Exhibit M-4

Pilot-in-command John N. Mummery Exhibit M-4

Passengers on board Two Exhibit M-4

Departure/Arrival time 17:25/18:20 Exhibit M-4

FOR THE APPLICANT—THE MINISTER OF TRANSPORT

The Minister's representative presented three witnesses. The first two witnesses, Mr. Keith Barnes and Mrs. Jacqueline Barnes testified with similar interpretations of the event.

  • They were both aboard a 26-foot powerboat on June 28, 1998. Jacqueline Barnes was at the helm steering a northwest course and because of the flying bridge construction of the boat her vision was limited.
  • They testified that the wind was calm, the sky clear and the seas were calm.
  • Mr. Barnes testified that he observed a small aircraft off his port side heading away from his ship. He stated that the aircraft made a sudden descent from altitude and appeared to be in distress. The aircraft levelled out at 40 to 50 feet above sea level and proceeded towards the Barneses' boat. Mr. Barnes instructed Mrs. Barnes to hold her present heading so as to allow the aircraft to ditch beside their boat. The aircraft flew over their bow at about 50 feet and turned towards the trailing sailboat. As the aircraft passed the Barneses' boat, Mr. Barnes indicated that he could clearly see the pilot gesturing with his hand, and the aircraft was low enough for Mr. Barnes to see through the cabin of the aircraft. The aircraft turned towards the trailing sailboat, passing down the starboard (right) side of the Barneses' boat. The aircraft proceeded towards the sailboat at the same altitude, passed the sailboat, turned and climbed to altitude and disappeared.
  • Mr. Barnes indicated that he attempted to video the entire sequence but because of the confusion caused by the circumstances he did not have the video camera operating at all times. Exhibit M-l is taken from a portion of the Barneses' video and is presented to indicate that the aircraft C-GFVB was the aircraft involved in this incident.

Cross-examination

Mr. Mummery questioned the Barneses about their ability to judge distances and there were no specific conclusions drawn. Mrs. Barnes indicated that she considered there was a possibility of the aircraft striking the Barneses' boat because of the low and close proximity of the aircraft.

The final witness for the Minister was Mr. Richard Newcombe.

Mr. Newcombe is the person assigned to investigate file number 031509, Mr. John Mummery. He presented the following exhibits:

  • Exhibit M-l Reproduction of three photos taken from the Barneses' video.
  • Exhibit M-2 C-GFVB registration printout
  • Exhibit M-3 Pacific Flying Club booking sheet
  • Exhibit M-4 C-GFVB journey log sheet
  • Exhibit M-5 Pacific Flying Club receipt made out to John Mummery
  • Exhibit M-6 Pacific Flying Club Aircraft & Pilot Signout Sheet

Mr. Newcombe testified that these were true copies of the original documentation, which he had examined during his investigation. Mr. Mummery agreed to their authenticity. Mr. Newcombe testified that through his investigation the following sequence of events transpired.

On Sunday, June 28, 1998 Mr. John Mummery rented a Cessna 172P registration C-GFVB from the Pacific Flying Club. He departed Boundary Bay Airport for an intended flight path encompassing the transition points of Sucia Islands, Roche Harbor, Friday Harbor, Bedwell Harbor and returning to Boundary Bay Airport.

The aircraft departed Boundary Bay at approximately 17:25 hours with two people on board and the flight time was calculated to be .90 of an hour. The aircraft was within the weight and balance requirements for the Cessna 172 and all safety equipment was on board.

Mr. Newcombe testified that he had viewed the videotape taken by Mr. Keith Barnes and he produced the three photos which comprise Exhibit M-1. His evidence was that the aircraft C-GFVB was the aircraft depicted on the pictures outlined in Exhibit M-1.

Mr. Newcombe testified that he discussed by telephone and letter on July 8, 1998 the situation with Mr. Mummery. There was a follow up meeting on July 15, 1998 at which time Mr. Mummery delivered a letter which appears as Exhibit D-1. During this conversation Mr. Mummery denied through conversation and by letter that he had crossed the bow of an unknown sailboat at 50 feet.

Mr. Newcombe testified that he recommended to his superiors that penalties not be proceeded with because his main concern was that the incident would not happen again. His recommendation was not accepted and a monetary penalty of $250.00 was issued.

Cross-examination

Mr. Newcombe stated that on certain occasions he would not proceed with penalties if the pilot admitted his transgression and the pilot gave assurances that the action would not be repeated. The main indicating factor was of course the severity of the transgression. Mr. Newcombe stated that Mr. Mummery had not admitted to the offence.

FOR THE RESPONDENT—MR. JOHN MUMMERY

Mr. John Mummery testified on his own behalf and was sworn in as a witness.

Mr. Mummery testified that on June 28, l998 he rented a Cessna 172 from the Pacific Flying Club of Boundary Bay Airport and at approximately 16:30 hours accompanied by his 9½-year-old daughter departed on a sightseeing trip to Point Roberts, Sucia Islands, Orcas Island and returning to Boundary Bay Airport.

Mr. Mummery testified that his original flight altitude was 1500 ASL but he descended to 600-700 feet because of conflicting commercial traffic. During this time he was in radio contact with the Vancouver VFR control centre.

Mr. Mummery testified that he had been type endorsed by a Pacific Flying Club instructor on June 27, 1998 (the day before the flight in question). He stated that he was not happy with his performance in conducting precautionary forced landings (PFL) and it was his intention to practice these procedures during this flight on June 28, 1998. Mr. Mummery testified that it was his operating procedure to descend to 200 feet AGL (over land) or 200 feet ASL (over sea) to practice this procedure.

Mr. Mummery testified that he observed three vessels proceeding in line on the Strait of Georgia. The first was a powerboat followed by a large sailboat. He stated that he had friends on the sailboat but denied by letter, Exhibit D-1, and testimony that he came within 50 feet of the sailboat.

Mr. Mummery testified that he observed people waving on the lead powerboat and denied crossing over this vessel at 50 feet. He further stated that the aircraft depicted in Exhibit M-1 could have been shown as being in close proximity through the use of a zoom function on the video camera. Mr. Mummery testified that he had 20,000 hours with 32 years experience as a pilot.

Cross-examination

Mr. Mummery admitted that a portion of his flight might have been within United States airspace.

Mr. Mummery in answering a direct question advised that he had not practised PFL procedures with his instructor on the previous day's check out flight. He also advised that he had not requested permission from the flight school to conduct these procedures during the flight on June 28, l998.

Mr. Mike Hardie was sworn in as a witness.

Mr. Hardie testified that the irregular patterns on the first two pictures of the aircraft in flight (Exhibit M-1) were abnormalities in the video process and not actual pictures of the surface of the sea. Mr. Mummery did not object to this interpretation.

ARGUMENTS

The Minister's representative stated that on June 28, 1998 Mr. John Mummery accompanied by his daughter rented a Cessna 172P registration C-GFVB from the Pacific Flying Club based at Boundary Bay Airport in British Columbia. At about 17:53 hours an aircraft was observed and videoed (Exhibit M-l) flying in the vicinity of a motorized 26-foot vessel owned by Mr. and Mrs. Barnes. The aircraft was subsequently identified through video interpretation to be a Cessna 172P registration C-GFVB. This aircraft was rented by and under the command of Mr. Mummery. In the opinion of the Barneses this aircraft was within 50 feet of their boat and appeared to be in some form of distress. This was dispelled by various hand gestures from both parties. The presenter for the Minister requested that the monetary penalty of $250.00 remain in effect.

Mr. Mummery was concerned that both Mr. and Mrs. Barnes had a long time to talk about the incident. He was also concerned that the Barneses waited 24 hours to report the incident to the Department of Transport.

Mr. Mummery admitted to seeing the waving from the Barneses and denied that he was within 50 feet of their vessel. Mr. Mummery indicated the reason the aircraft looks so close in Exhibit M-1 is through the use of the zoom capabilities within the video camera.

Mr. Mummery stated that in his opinion it was unwise for him to practice PFLs during this flight. He stated that he had acquired 32 years of experience with 20,000 hours of which 6,000 hours were in small aircraft without incident or violation.

ANALYSIS

There are two issues to consider in this file.

  • While not established by the Applicant or the Respondent, there is a chance that this incident took place in foreign airspace. Upon examination of the Aeronautics Act, Part I, section 4.1 titled "contraventions outside Canada" I find the following statement:

4.1 Every person who commits an act or omission outside Canada that if committed in Canada would be a contravention of a provision under this Part shall be deemed to have committed a contravention of the provision under this Part and may be proceeded against and punished in the place in Canada where the person is found as if the contravention had been committed in that place.

R.S., 1985, c. 33 (1st Supp.) s. 1; 1992, c.4, s. 3.

  • None of the witnesses were able to establish the exact altitude Mr. Mummery descended to during his manoeuvres adjacent to the Barneses' boat. The regulations titled "Minimum Altitudes and Distances" contained in subsection 602.14(1) of the CARs state:

602.14 (1) For the purposes of this section and section 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons where that built-up area or open-air assembly of persons is within a horizontal distance of

(a) 500 feet from a helicopter or balloon: or

(b) 2,000 feet from an aircraft other than a helicopter or balloon.

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(...)

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

CONCLUSION

The interpretation of the Aeronautics Act, Part I, section 4.1 indicates that the Minister was correct in proceeding with a sanction even though the aircraft may have been in foreign air space.

In the section titled "Minimum Altitudes and Distances" of the CARs, paragraph 602.14(2)(b), any Canadian aircraft is prohibited from flying at a distance less than 500 feet from any person, vessel, vehicle or structure.

The testimony from Mr. and Mrs. Barnes indicates that the aircraft approached at a distance of approximately 50 feet to their boat. I dismiss this exact calculation, as it would be impossible to judge this distance without a measuring device. I am however convinced that the aircraft was below 500 feet which is stipulated by the regulations and thus in violation of accepted practices.

I am also relying on Mr. Mummery's own testimony where he gave evidence that to conduct a proper PFL exercise he would descend to 200 feet. Mr. Mummery also stated that it was a mistake on his part to conduct this procedure during this flight.

DETERMINATION

I find that John N. Mummery did contravene paragraph 602.14(2)(b) of the Canadian Aviation Regulations, and I confirm the Minister's decision to issue a monetary penalty of $250.00.

E. David Dover
Member
Civil Aviation Tribunal