TATC File No. A-3013-35
MoT File No. Z5504-053109
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Earl G. Penny, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, ss. 571.10(1), 605.85
Philip D. Jardim
Decision: November 18, 2004
Mr. Earl G. Penny did contravene subsection 571.10(1) of the Canadian Aviation Regulations. I am satisfied that he has learned from this incident and that he is fully cooperative with Transport Canada. In the circumstances, I find that $1,000.00 is a harsh penalty. Accordingly I shall reduce the fine to $500.00. The total penalty of $500.00 must be paid to the Receiver General for Canada and received by the Tribunal within thirty-five days of service of this determination.
A review hearing on the above matter was held Tuesday, November 9, 2004 at 9:00 hours at the Career and Learning Centre in the John Cabot Building, in St. John's, Newfoundland.
On May 16, 2003, Mr. Earl G. Penny, an aircraft maintenance engineer (AME) licence 204262, signed a maintenance release for Piper PA-31 Navajo aircraft, C-GMHX, owned by Natuashish Construction Ltd. of Goose Bay Labrador. In the course of a routine inspection of the aircraft maintenance records of the company, on June 23, 2003, Transport Canada maintenance inspector, Mr. Garry Davis, issued a Notice of Suspension suspending the certificate of airworthiness (C of A) of C-GMHX. The Notice of Suspension listed five grounds for the suspension, among which was: "4. The right hand engine cowl flap and motor are unserviceable."
An investigation ensued and Transport Canada Enforcement issued a Notice of Monetary Penalty dated May 6, 2004, under section 7.7 of the Aeronautics Act, levying a fine of $1,000.00. Mr. Penny applied to the Tribunal for a review, hence this hearing in St. John's Newfoundland on Tuesday, November 9, 2004.
Subsection 571.10(1) of the Canadian Aviation Regulations (CARs) states:
571.10 (1) No person shall sign a maintenance release required pursuant to section 605.85 or permit anyone whom the person supervises to sign a maintenance release, unless the standards of airworthiness applicable to the maintenance performed and stated in Chapter 571 of the Airworthiness Manual have been complied with and the maintenance release meets the applicable requirements specified in section 571.10 of the Airworthiness Manual.
Section 605.85 of the CARs states:
605.85 (1) Subject to subsections (2) and (3), no person shall conduct a take-off in an aircraft, or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, where that aircraft has undergone maintenance, unless the maintenance has been certified by the signing of a maintenance release pursuant to section 571.10.
(2) Where a maintenance release is conditional on the satisfactory completion of a test flight pursuant to subsection 571.10(4), the aircraft may be operated for the purpose of the test flight if no person is carried on board other than flight crew members and persons necessary for the purpose of making observations that are essential to the test flight.
(3) Following a test flight conducted pursuant to subsection (2), the pilot-in-command shall enter the results of the test flight in the journey log and, where the entry indicates that the results of the test flight are satisfactory, that entry completes the maintenance release required by subsection (1).
(4) No maintenance release is required in respect of tasks identified as elementary work in the Aircraft Equipment and Maintenance Standards.
The Minister led evidence and 14 exhibits from two witnesses, both of whom are Transport Canada inspectors. Mr. Garry Davis did the audit of the maintenance records of the aircraft, PA-31 Navajo C-GMHX, and suspended the aircraft's C of A on June 23, 2003. He then turned the matter over to the Enforcement Branch, and Inspector Gary Perry was assigned to the case. The burden of proof as to whether an unserviceable cowl flap motor and transmission voids the C of A of the Piper PA-31 aircraft rests with the Minister. In the course of the evidence given and in his cross-examination of Mr. Davis, Mr. Penny admitted that it had been unserviceable for over one year.
Reference to cowl flaps and their operation in the Piper Progressive Inspection 50 Hour Cycle Manual is scant (Exhibit M-10). One has to reference Exhibit M-6, the Federal Aviation Administration (FAA) Type Certificate Data Sheet A20SO, which, inter alia, states engine limits. Also, Exhibit M-7: Civil Aeronautics Manual 3, which, inter alia, prescribes engine cooling provisions and the operation and use of cowl flaps, and the Pilot's Operating Manual, Exhibit M-11, which references the use of the cowl flaps to keep engine temperatures within limits.
The two witnesses, Messrs. Davis and Perry, referenced these documents throughout their evidence, while establishing the certification basis for the PA-31 in Canada.
Mr. Coomber exhaustively referenced these exhibits through his witnesses, Messrs. Perry and Davis, both of whom I found highly credible in the direct and straightforward manner they delivered their evidence. Mr. Coomber particularly highlighted the safety aspect of a possible left engine failure in flight, when the right engine would have been stressed beyond its temperature limits with the right cowl flap wired closed.
Mr. Penny took the stand but really had little to say in his own defence. He acknowledged that he had made a mistake. At no time did Mr. Penny seek to hide the fact that he had wired the right engine cowl flap closed. He acknowledged that ignorance of the law is no excuse, but said that he could find no specific reference to the importance of the cowl flaps in the maintenance manual detailing their effect on the C of A. He finds that the fine imposed upon him is harsh in the circumstances.
Mr. Penny has admitted his mistake. He has never sought to hide what he did and Transport Canada found him fully cooperative at all times. The flow of cooling air is of critical importance through a close-cowled engine, such as the Lycoming TIO-540 fitted to the Navajo. Mr. Penny should know this as an experienced AME. Further, he should have cross-referenced the other documents under reference above. However, the fact that the aircraft flew for over one year with an inoperative right cowl flap in the relatively cool environment in Labrador is a matter of luck, and may have clouded his judgment as to the importance of this component and its effect on the airworthiness of the aircraft.
I am satisfied that Mr. Penny has learned from this incident and that he is fully cooperative with Transport Canada. In the circumstances, I find that $1,000.00 is a harsh penalty. Accordingly I shall reduce the fine to $500.00. I urge Mr. Penny to work with Transport Canada to resolve any future doubts and issues he may have relative to his work as a qualified AME.
At the conclusion of this hearing I have determined that Mr. Earl G. Penny did contravene subsection 571.10(1) of the CARs. For the reasons given above I shall reduce the fine to $500.00.
Philip D. Jardim
Transportation Appeal Tribunal of Canada
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