Decisions

TATC File No. P-2954-33
MoT File No. EMS 051249

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Captain Grant A. Wagstaff, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.96(3)(d)


Review Determination
William Thornton Tweed


Decision: June 15, 2004

The evidence does not show that C-GJAW came within 50 metres of either vessel during the landing in question. Therefore, the Notice of Assessment of Monetary Penalty is set aside.

A review hearing on the above matter was held Tuesday, April 27, 2004 at 10:00 hours at Premiere Verbatim Reporting in Vancouver, British Columbia.

FACTS

It was not contested that on July 7, 2003 a West Coast Air DHC 6 Twin Otter float plane Canadian registered C-GJAW did at approximately 09:05 local time land in the designated landing area "A" at Victoria Harbour, B.C. Grant A. Wagstaff was the pilot-in-command.

After circling to allow for separation with marine traffic JAW approached along the "Gorge" then turned right on to final. On approach JAW passed between a harbour ferry and a tug towing a barge then landed in designated landing area "A" of the harbour.

ISSUE

Did Captain Wagstaff violate the provisions of paragraph 602.96(3)(d) of the Canadian Aviation Regulations (CARs) by failing to maintain a distance of 50 metres from a surface vessel during landing in Victoria Harbour?

THE EVIDENCE

There were three witnesses that testified that in their opinion the aircraft was less than 50 metres from the two vessels when it passed above and between the two vessels. Two individuals that reside in a condominium complex adjacent to the harbour and the Captain of the tug towing a barge referred to in the Notice of Assessment of Monetary Penalty. The fact that both of the witnesses that live just north of the harbour have in the past filed numerous complaints concerning landing aircraft causes me to question their objectivity. However, given the corroborating evidence of the tug boat Captain I find that C-GJAW was within 50 metres of the two surface vessels on its approach to land.

The Minister also presented a surveillance video. In the circumstances, without any expert evidence to confirm the accuracy of the video, the distance and angle of the camera from the aircraft, I am not prepared to rely on the video.

Captain Wagstaff stated that he believes a landing begins as you touch down.

There was no evidence to show that JAW was less than 50 metres from either vessel during or immediately preceding the landing.

The evidence does not support a finding that the approach or landing was in any way unsafe.

Both pilots said the aircraft was not within 50 metres of either vessel during the landing.

THE LAW

The Canada Flight Supplement for Victoria Harbour BC (water aerodrome) Restriction 3 states: "Pursuant to CAR 602.96(3)(d), acft shall maintain a distance of at least 50 m (165') from surface vessels during tkof or ldg." (the italics are mine)

The Notice of Assessment of Monetary Penalty reads: "You failed to maintain a distance of 50 meters from a harbour ferry (a tugboat and barge) while landing."

In the CARs at subsection 101.01(1):

"landing" means

(a) in respect of an aircraft other then an airship, the act of coming into contact with a supporting surface, and includes the acts immediately preceding and following the coming into contact with that surface, and ...

"Immediately" is defined in Blacks Law Dictionary: "Without interval of time, without delay, straightway, or without any delay or lapse of time."

CONCLUSION

In the Notice of Assessment of Monetary Penalty the reference to "while landing" suggests that the 50-metre separation requirement includes the approach. In my opinion the approach is not subject to Restriction 3.

The only act that immediately follows the landing is the deceleration (roll out if on wheels). Certainly the drafters of the restriction did not intend the restriction to apply while the aircraft is being taxied to the dock, the act that immediately follows deceleration.

The acts that immediately precede a landing are the change of attitude of the aircraft to bring about the required round-out and subsequent hold-off to touchdown. (See Flight Instructor Guide 02/2000 published by Transport Canada; The Approach and Landing advice to instructors (12) page 105). Given there are two intervening acts between the approach and the coming into contact with the surface the approach does not immediately precede the landing. If the drafters of the regulation intended the 50-metre separation to include the approach, Restriction 3 in the Canada Flight Supplement should have made that clear. As it is not, I must interpret the regulation in favour of the document holder.

The evidence does not show that C-GJAW came within 50 metres of either vessel during the landing in question. Therefore, the Notice of Assessment of Monetary Penalty is set aside.

William T. Tweed
Member
Transportation Appeal Tribunal of Canada