Decisions

CAT File No. P-2254-02
MoT File No. EMS 042029

CIVIL AVIATION TRIBUNAL

BETWEEN:

Gordon Dalziel, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S. c. 33 (1st Supp), s. 6.9
Canadian Aviation Regulations, SOR/96-433, s.602.01

Reckless, Negligence, Float Plane


Review Determination
Allister W. Ogilvie


Decision: June 28, 2001

The Minister has proven the case on a balance of probability, and the decision to suspend Mr. Dalziel's licence for fourteen days is confirmed. The sanction imposed is appropriate for the conduct. Said 14-day suspension will begin on the fifteenth day following service of this determination.

A review hearing on the above matter was held Wednesday, June 20, 2001 at 10:00 hours at the Toronto Dominion Bank Building in Victoria, British Columbia.

BACKGROUND

On June 24, 2000, the weather at Shawnigan Lake, British Columbia was very fair, sunny, with little wind. The conditions were ideal for water skiing. Mr. David Gray was water skiing that day. His wife drove the boat and his stepfather, Mr. Borst, operated as spotter.

They had departed a cottage on Shawnigan Lake, heading in a southerly direction parallel to the western shore of the lake, with Mr. Gray in tow. Nearing the south end of the lake, the boat reversed course turning left to head North.

At that time an aircraft passed over or near the watercraft. Its passage was close enough to startle the occupants of the boat and the skier, Mr. Gray.

The aircraft proceeded to land and taxied into a dock. By then the boat crew had retrieved Mr. Gray, and the trio went over to the aircraft dock to seek an explanation. Words were exchanged between the parties. The boaters left very shortly after arriving, stating that incident would be reported.

They did report the incident to Transport Canada. An investigation was started. The result of the investigation was that Transport Canada alleged a violation against the pilot, Mr. Dalziel, in the following form:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Canadian Aviation Regulations section 602.01 in that at approximately 2:00 PM local time, on or about June 24, 2000, at or near Shawnigan Lake B.C., you operated aircraft C-GBSE in such a negligent manner as to endanger or be likely to endanger the life or property of a person, specifically that you flew in close proximity to a boat occupied by persons.

Mr. Dalziel disputed that allegation and requested this hearing by the Civil Aviation Tribunal.

EVIDENCE

Mr. Dalziel was very frank and forthcoming. He admitted to being the pilot of a Cessna 180, C-GBSE that landed on Shawnigan Lake, British Columbia about 2:00 p.m. on the 24th of June last year. He acknowledged that, during the approach to land, he passed by the boat in question.

The evidence presented by the boaters is not totally consistent, but that does not cause me consternation. The event was not one snapshot in time but rather a dynamic occurrence. The boat was travelling at about 30 mph and was in the process of straightening out from a turn. The aircraft was overtaking it and descending at the same time. Mr. Borst sat in the bow facing aft. Mrs. Gray was situated midship, driving the boat facing forward. Mr. Gray was facing forward, but was trailing the boat by the length of the tow rope. Each person's view of the aircraft was predicated upon their physical situation and changing positions of both aircraft and boat. Mr. Borst, facing the rear in his role as spotter, had the first opportunity to see the aircraft as it approached. Mr. and Mrs. Gray could only see the aircraft as it passed by or over them as they were facing the same direction as the overtaking aircraft. Each person viewed the aircraft at a different time and place given the constantly changing positions of two moving objects.

Some evidence must be rejected. Mr. Gray's statement that he observed the float of the aircraft about 10 feet above his wife's head must be an error. Mrs. Gray stated that she could see the pilot.

Mr. Dalziel, the pilot, testified he could see the boat. Therefore, the aircraft could not have been over the head of Mrs. Gray but to one side.

The cross-examination of Mr. Dalziel explored the height and distance of his aircraft from the boat. He stated that he had greater than 25 feet above and was possibly as high as 50 feet above the water. Laterally he was no less than 25 feet from the side. He stated that the boat was under his wing and when he banked, the low wing was over the boat.

Mrs. Gray testified that after having completed the turn at the south end of the lake she saw a shadow that caused her to look up, whereupon she saw an aircraft to her right. She stated that she could see the pilot's face very clearly even to his hair colour, complexion and sunglasses. Upon cross-examination Mrs. Gray said that she felt like she could reach out and touch his face. She would not speculate as to the actual height of the aircraft, but reiterated that it seemed "so close."

Mr. Borst had estimated the aircraft height to be 20 feet above them, at a 45-degree angle.

DISCUSSION

Prior to addressing the issue of the alleged violation I will make mention of the exchange of words on the dock. My task is to evaluate the evidence relevant to the allegation, that is to the operation of the aircraft. Although both parties presented strong and conflicting evidence as to the exchange, it took place after the incident and does not assist me in the evaluation of it. As such it is irrelevant to my consideration and will not be addressed further.

The onus of proof is upon the Minister. He must establish each element of the offence on a balance of probability. In the case of an allegation of violation of section 602.01 of the Canadian Aviation Regulations (CARs), he must establish the following:

  • date, time and place of the aircraft's operation;
  • the identity of the person operating the aircraft;
  • that is was operated in a negligent manner so as to endanger or be likely to endanger life or property of persons.

Mr. Dalziel has quite candidly admitted that he was the pilot of Cessna 180, BSE on June 24, 2000 at around 2:00 p.m. when that aircraft flew by a boat on Shawnigan Lake, British Columbia, thus establishing all the essential elements except the last.

ISSUE

The only outstanding issue is whether that operation was performed in such a negligent manner as to endanger or be likely to endanger the life or property, in this case, the lives and property of Mr. and Mrs. Gray and Mr. Borst.

Evidence was adduced by the witnesses as to where the aircraft had landed in relation to the boat. Although of considerable interest, the allegation that I must address is that the aircraft flew in close proximity to a boat occupied by persons.

I find that Mr. Dalziel's aircraft passed by the boat at about 25 feet laterally and 20-25 feet vertically. I make this find on the combined evidence of Mr. Dalziel, Mrs. Gray and Mr. Borst.

Mr. Dalziel testified to distances of 25-50 feet laterally and 25-50 feet in height. He also stated that the aircraft wing had gone over the boat. That leads me to conclude that the shorter of his estimate is the more accurate. That is combined with the testimony of Mrs. Gray who gave detailed testimony of Mr. Dalziel's facial features, which is more consistent with the aircraft being closer to the boat then further. Mr. Borst's estimation of height of 20 feet corroborates Mr. Dalziel's estimate of about 25 feet. The 5-foot differential is insignificant given that both figures are estimates and then estimates of a moving descending object.

Mr. Dalziel stated that everything was normal on the flight, that he felt comfortable on the approach. He was an experienced pilot but as he had relatively little time on floats he was being cautious. He felt he had no need to be further away as he could follow the track of the boat. He testified that boat traffic was not busy as he observed only three. There was no evidence given of other aircraft traffic.

The occupants of the boat had each expressed their concerns regarding the close proximity of the aircraft with Mr. Gray stating that he thought his wife would be struck by the aircraft float.

The last element of the alleged violation has two facets:

1) the operation of an aircraft in a negligent manner;

2) that operation having endangered or be likely to endanger the life or property of a person.

Civil Aviation Tribunal jurisprudence has addressed that issue on numerous occasions.

Of particular interest here is the review and appeal determination in Francis Dominic Decicco v. Minister of Transport.[1] In Decicco the alleged violation was breach of section 520 of the Air Regulations. That section was the predecessor of section 602.01 of the CARs. The wording of the section is identical. The alleged violations in this case are the same and the factual circumstance is similar, although it dealt with wheeled aircraft rather than float equipped aircraft.

The captain of a Beech 99 aircraft was alleged to have landed on two separate occasions in one day on a runway before a previous flight had cleared the runway. Each time the landing aircraft was in close proximity to the aircraft on the ground.

Various witnesses testified to the close proximity of the aircraft. In the first incident one passenger on the Beech stated that they flew over top of a Cessna 180 on the runway. The pilot of the 180 aircraft stated that the Beech passed about 30 to 50 feet from his left wing tip. Each one expressed concerns over safety. Similar testimony was heard regarding the second incident.

The notice of suspension contained particulars substantially similar to those in question here. Count # 1 stated in part that the captain operated an aircraft in such a negligent or reckless manner as to endanger or likely to endanger the life or property of any person, "by reason of the fact that you landed your aircraft on Runway 27 passing in close proximity to a Cessna 180 aircraft which occupied the runway".

Count # 2 was a similar allegation but alleging that he had landed, later in the day, "in close proximity to a Piper PA 11 aircraft which occupied the runway".

It can be seen that the factual circumstances are analogous, having an aircraft on approach come in close proximity to another aircraft situated on the landing surface, in the Decicco case, and having an approaching aircraft come in close proximity to a vessel on the landing surface here.

At the review, the hearing Member found that the captain did contravene the provision and upheld a 20-day suspension of his licence. The determination was appealed.

The appeal panel undertook an analysis of the concept of negligent or reckless conduct. Regarding negligence they quoted a definition of negligence in Norbert A. Selbstaedt v. Minister of Transport[2] as follows:

The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.

Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

In their consideration they paid heed to testimony of the inspector who was of the opinion that when flying over another aircraft in those circumstances there was no safety margin for either the overflying aircraft or the one on the ground.

The Tribunal concluded that the operation complained of fell below the standard of a reasonably prudent pilot so as to constitute negligence. The unnecessary risk of collision with the other aircraft and occupants was sufficient to meet the second facet, that is to endanger or likely to endanger the life or property of any person.

In this case we have Mr. Dalziel's evidence that there was little other boat traffic. Photographs of the scene, entered by him (Exhibits D-1, D-2, D-3), depict the approximate path of the boat and situation of the aircraft on the lake. What is obvious from his evidence is that there was ample room to either side or forward of the boat in which to accomplish a landing. No evidence was lead to suggest that these areas were unsuitable for landing, perhaps because of rocks or reefs. No evidence suggested that the other areas were in any way restricted, such as would be the case for a bathing or swimming area. Since the weather was fair, with light winds there was no meteorological reason, such as strong crosswinds, to preclude using other area for landing. There was no evidence adduced nor argument presented that would suggest that he was compelled to approach in close proximity to the boat for any exigent purpose.

If not compelled to approach in close proximity to the boat on the water, would a reasonable and prudent pilot choose that approach? Choosing that path reduced any margin of safety, given an unforseen mechanical malfunction or an unpredictable course of action by the boat. Would a reasonable and prudent pilot have chosen that approach? I think not.

I find the reasoning and determination in the Decicco case to be compelling and can apply it in this circumstance. Mr. Dalziel chose to fly in close proximity to a vessel on the surface for no discernable reason. Doing so reduced the margin of safety, when there was no good reason to do so. He failed to use such care as a reasonably prudent and careful pilot would use under similar circumstances so as to constitute negligence. The close proximity of his aircraft to the boat is sufficient to establish an unnecessary risk of collision so as to establish that he endangered or was likely to endanger the life or property of persons.

CONCLUSION

The Minister has proven the case on a balance of probability, and the decision to suspend Mr. Dalziel's licence for fourteen days is confirmed. The sanction imposed is appropriate for the conduct.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] Francis Dominic Decicco v. Minister of Transport, CAT File No. C-1316-02, Review; Francis Dominic Decicco v. Minister of Transport, CAT File No. C-1316-02, Appeal.

[2] Norbert A. Selbstaedt v. Minister of Transport, CAT File No. C-0081-02, Appeal.