Decisions

TATC File No. P-2844-33
MoT File No. EMS048634

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Rajnita Kaur Sandhu, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 605.10(1)(a) and sub. 605.94(1)


Review Determination
William D. Nicholson


Decision: November 9, 2004

The Minister has proven all elements of the offence, and the assessment of $200.00 against Ms. Sandhu stands. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within fifteen days of service of this determination.

A review hearing was held on the above matters on June 28 and 29, 2004 commencing at 10:00 hours and conducted at the Federal Court of Canada, in Vancouver, British Columbia.

BACKGROUND

There were two Notices of Assessment of Monetary Penalty dealt with at this hearing. The first Notice alleged that Rajnita Sandhu contravened two counts each of paragraph 605.10(1)(a) and subsection 605.94(1) of the Canadian Aviation Regulations (CARs), pursuant to section 7.7 of the Aeronautics Act. The total assessed monetary penalty for these alleged contraventions was $700.00 (TATC File No. P-2844-33).

The second Notice alleged that International Express contravened two counts each of sections 605.06 and 703.19, pursuant to section 7.7 of the Aeronautics Act, carrying a total assessed penalty of $15,000.00 (TATC File No. P-2845-37).

These contraventions arose from ramp inspections conducted by Federal Aviation Administration (FAA) Inspector Harold Hutchins in Bellingham, Washington and MoT Inspector Patrick Davies in Vancouver, British Columbia.

PRELIMINARY MOTION

It was argued that George Tingle, a witness for the Respondents, should be allowed to assist counsel for the Respondents on technical matters. As there were no objections from the Applicant Mr. Tingle was allowed to observe the complete hearing.

The Minister's motion was granted to drop two counts of paragraph 605.10(1)(a) of the CARs against Ms. Sandhu, thus reducing the monetary penalty to $200.00.

The Minister's motion to change the wording in the charge under section 605.06 of the CARs against International Express was also granted, reducing the elements in the charge.

A spelling mistake on the Notice of Assessment of Monetary Penalty to Ms. Sandhu was corrected.

EVIDENCE

The Minister called witness Inspector Terry Van Gelderen, Civil Aviation Safety inspector, Richmond. Through this witness the photocopied journey log book for aircraft C-FDEB (Exhibit M-1) was introduced.

The Minister called its second witness, Inspector Stephen Bailey, Civil Aviation Inspector – Enforcement. Mr. Bailey gave evidence as to how the charges were determined and laid. He also identified the tower record (M-3) to explain the time records in the log book (M-1) and to correlate the time entered in Inspector Davey's notes.

Material data evidence was introduced as type certificate data (M-5) and A.R.B. (Air Registration Board) Approved Flight Manual (M-6). This showed aircraft C-FDEB to be a Britten-Norman Model B. 2 Alpha Islander with a "required equipment" list including an airspeed indicator.

Mr. Bailey furnished the regulatory flow chart for CARs 703.19 (M-7) as to how the charges were developed.

Photocopied excerpts of the Regency Express Flight Operations Maintenance Control Manual (M-8) were introduced and explained that this gave direction to their pilots as to how and when entries should be made, to their engineers as to how the company maintains its aircraft. Regulatory flow chart of CARs 605.94(1) (M-9) further defined who was responsible for making entries and when this should occur.

Under cross-examination Mr. Bailey acknowledged that he had no direct knowledge of the events of May 14, 2002.

The third witness called by the Minister was FAA Inspector Harold Hutchins, Agency Inspector and International Safety Inspector. Mr. Hutchins identified the pilot-in-command on May 14, 2002 as Ms. Sandhu sitting in the courtroom.

Testimony given by Mr. Hutchins showed that both the pilot-in-command (Rajnita Sandhu) and second-in-command (Nicholas Hill) were informed, "that in the United States the Regulations are clear that the airspeed indicator is required and that the airspeed indicator reading 22 knots was not what should be happening." He also gave testimony that he spoke to Ranjit Gill, President of International Express, with the use of the pilot-in-command's cell phone and advised him that the wind was not 22 knots and "the airspeed indicator was showing incorrectly."

The airspeed indicator's actual appearance was given significant time. Mr. Hutchins' testimony described the airspeed indicator as, "the number 20 was the first number..., a large mark that showed what would mean 10 knots. Then there were individual marks between those two marks. ... it was two notches past the 20." When questioned if the Respondents' airspeed indicator (R-1) was the same as he saw installed in the aircraft, he testified, "it's not the same type of airspeed indicator. Markings aren't the same."

Under some rather aggressive cross-examination Mr. Hutchins gave evidence that there had been discussions from his FAA officer with Regency Express as to their acquiring a MEL (minimum equipment list) for each Islander aircraft. He stated, "If you don't have an MEL, everything must work."

Mr. Hutchins explained that as an inspector he does not have the power to ground aircraft, only to advise of anomalies and allow the pilot and/or the company to take appropriate action.

Exhibit R-2 (page of Overhaul Manual) was shown to Mr. Hutchins who stated none of the depicted airspeed indicators were the same as the one installed.

The last witness called by the Minister was Inspector Patrick Davey. In his testimony he stated that his office was informed that a ramp check by the FAA in Bellingham had uncovered some discrepancies and he went to meet the aircraft. Mr. Davey checked the logbook and was informed that there were no defects on the aircraft and no log entries made. He proceeded to inspect the aircraft in particular the airspeed indicator which he noted was, "reading approximately 22 knots." He did add that it was very windy at the time. He had the copilot cover the pitot tube with his finger and observed no change in the airspeed indicator. At this point the captain agreed that the airspeed was defective.

When asked how he knew it was 22 knots, he stated, "I observed it with my eyes. I verified it with the captain and copilot."

Mr. Davey was shown the airspeed indicator (R-1) and stated it was not similar to the installed airspeed indicator. He indicated the installed airspeed indicator had a mark for 10 and the first number was 20.

Exhibit R-2, a page of the Overhaul Manual, was shown and Mr. Davey stated, "It's certainly not one of these instruments that were in there."

The first witness called by the Respondents was Ranjit Gill, owner and operations manager, International Express. He gave evidence as to the frequency of ramp inspections in Bellingham and how it may have been connected to a MEL issue.

Evidence was offered by Mr. R. Gill that his company had an arrangement with a Mr. Marley of Alpha Aviation to do spot maintenance in Bellingham. International Express also had an aircraft in Victoria that could be used in place of an unserviceable aircraft.

Under cross-examination Mr. R. Gill agreed that suspected defects should be entered into the journey log book, but did not agree that the airspeed indicator was defective.

Ms. Rajnita Sandhu, the captain, was called as the Respondents' second witness. She gave evidence as to the company's standard operating procedures (SOP). These checks included before start, after start, taxiing, and initial take-off roll.

Ms. Sandhu's recollection of the installed airspeed indicator and in reference to Exhibit R-1 airspeed indicator was that "it's very similar." "No markings until 40." The indicator was a "tad off zero."

She indicated that Inspector Davey had told her what to enter in the log book with reference to the airspeed indicator.

Under cross-examination Ms. Sandhu read a section of Regency Express Maintenance Control Manual (M-8), "All defects occurring shall be entered into the journey log as required by CAR 605.94 Schedule 1, ... but in any case prior to the next flight." When asked if all defects include suspected and known defects, she answered, "Yes."

The Hearing Officer asked questions regarding checks that may have been in accordance with Regency Express' SOPs that would have been done while on the take-off roll, backtracking or taxiing downwind.

The third and final witness for the Respondents was George Tingle, Director of Maintenance, Regency Express. Testimony was given as to his involvement in the Bellingham inspection. He described the airspeed anomaly as a wind induced factor. Mr. Tingle testified that he resolved the fuel pressure gauge question with a description of how the system works.

Mr. Tingle became involved with the Vancouver inspection after receiving a phone call from the captain advising him that Transport Canada had stopped them and was conducting an inspection. Points made in regard to the Vancouver inspection include that although placing a finger over the pitot tube was not a valid maintenance test the airspeed indicator should have read zero. He agreed that this discrepancy should have been written in the log book.

The airspeed indicator description was stated as, "similar to this one," referring to (R-1) airspeed indicator.

THE LAW

The Canadian Aviation Regulations:

Aircraft Equipment Standards and Serviceability

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.

Maintenance of Aircraft

703.19 No air operator shall permit a person to conduct a take-off in an aircraft that has not been maintained in accordance with the air operator's maintenance control system.

Unserviceable and Removed Equipment — Aircraft without a
Minimum Equipment List

605.10 (1) Where a minimum equipment list has not been approved in respect of the operator of an aircraft, no person shall conduct a take-off in the aircraft with equipment that is not serviceable or that has been removed, where that equipment is required by

(a) the standards of airworthiness that apply to day or night VFR or IFR flight, as applicable;

(b) any equipment list published by the aircraft manufacturer respecting aircraft equipment that is required for the intended flight;

(c) an air operator certificate, a private operator certificate, a special flight operations certificate or a flight training unit operating certificate;

(d) an airworthiness directive; or

(e) these Regulations.

Journey Log Requirements

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.

The Aeronautics Act:

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

DISCUSSION

During the hearing we had numerous areas of conflicting testimony. These discrepancies included the indication on the airspeed indicator, the depiction of the airspeed indicator as Exhibit R-2, who attended and when at the inspections in question, parts in stock, and areas of the airspeed that had no consequences. It may be due to time having clouded memories or the desire to give various slants to the testimony. It is my responsibility to weigh each side of these conflicts.

The Respondents describe the airspeed indicator as "tad off zero," and "needle over to the right." The Applicant's witnesses had reviewed their written notes from the time and describe the airspeed indicator as, "the one that was in the aeroplane had 20 knots and was reading 22 knots on the ground." I tend to favour memory reinforced by timely notes.

Defence counsel strongly suggests that Exhibit R-2 (drawing of airspeed indicator) was an accurate depiction and only face on the instrument type 8025. Both inspectors disagreed by stating: Inspector Hutchins, "That's not the one I saw, no." And Inspector Davey, "It's certainly not one of these instruments that were in there." I completely reject R-2 as an accurate image because I note that R-2 shows numbers in MPH (miles per hour) not knots as all the testimony mentioned and Exhibit R-1 (airspeed indicator) has on its face.

Arguments were made as to who and when various people were at the Vancouver inspection. Ms. Sandhu stated she was stopped from taxiing, shut down and the inspection started, then she telephoned maintenance from her cell phone. She also stated George Tingle was there for the inspection. Mr. Tingle testified that he received a phone call that they were being ramped and walked over. Inspector Davey was recalled to testify that after the inspection was when Mr. Tingle was met heading for the aircraft. I am not sure of the time frame of the inspection or the importance of who may have been there other than to reduce the credibility of Inspector Davey's testimony. The question of the charges in their elementary terms are: 1) was the aircraft operated with an unrecorded defect and 2) was the company aware of this.

The suggestion of a parts stockpile was made by the Respondents. Mr. R. Gill, "We have spare parts." Mr. Tingle was asked the question, "So you had a replacement airspeed indicator in stock?" Answer, "Yes, I did." When I checked the logbook entry I discovered that the replacement airspeed indicator was taken from aircraft C-FZGT as serviceable.

The notion was given by defence that there is no validity in measurements below 40 knots and therefore this space on the airspeed has no consequence to flight. I must object to this statement as the aircraft manufacturer, Britten-Norman, publishes and we see through the type certificate data sheet (M-5) that Vmc (minimum control speed) for model BN.2A is 39 knots. Granted 39 is close to 40, but it is still less, and Vmc is a critical number for a multi-engine aircraft.

There were other areas of discrepancy in the testimonies, such as the 20 plus knots of wind that were always blowing down the aircraft pitot tube. It sounded as if the aircraft was constantly aligned into the wind or at least in a position where the pitot tube received enough pressure to read positive. Inspector Hutchins' testimony would have been given more weight had he explained that he felt the aircraft was in the shade of a building or sitting crosswind or downwind; this he did not cover well. I even asked the question of Captain Sandhu if there was a time when her crew were doing checks while taxiing crosswind or backtracking, she never commented that the airspeed was zero/vertical. Aircrews that I have flown with would have been thrilled to point out an inspector's (be they FAA, Transport Canada or Company) error like taxiing downwind and seeing an airspeed "less than zero."

The MEL issue was raised as contributing. Perhaps, as the frequency of inspections indicates, it certainly appears that Regency Express was being watched closely, but the charges refer to operating with a known defect and not recording it in the journey log book. Why was the airspeed indicator problem chosen as the snag to press charges on? Maybe because the airspeed indicator is not an item deferrable on a MEL. The roof panel which both Mr. R. Gill and Ms. Sandhu referred to may have been deferrable though I noticed it was not written in the journey log either.

We must also look at who put the eventual entry in the log. Captains are paid to make decisions and stick to their action plans. If Captain Sandhu did not agree with the airspeed snag and maintenance was present (though it is in dispute when George Tingle arrived), then allow maintenance to verify the problem and enter the snag as their discovery, just as they would in a separate inspection. As a Captain I would not have made that entry and certainly not have signed it.

SANCTIONS

International Express charges carried a combined monetary penalty of $15,000.00. This is 25% of the maximum permitted assessment. I feel this is fair and recommend no changes.

Ms. Sandhu had two charges dropped under preliminary motions. This reduced the monetary penalty from $700.00 to $200.00. The leniency shown is justified, and I feel the remaining $200.00 assessment and the experience of this process will encourage her to be cognizant of a captain's responsibilities.

DETERMINATIONS

The Minister has proven all elements of the offences and the assessments of $15,000.00 against International Express and $200.00 against Ms. Sandhu stand.

William D. Nicholson
Member
Transportation Appeal Tribunal of Canada