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Amendment 0 (1986-87)

CAT and TATC Decision Amendments

Aeronautics Indexes

Services

CAT File No. P-0009-02

CIVIL AVIATION TRIBUNAL

BETWEEN:

Marcus Brace

- and -

Minister of Transport

C.R.C., c. 2, ss 218(c), 520(1), 543

Unsecured cargo - Negligent or reckless operation of an aircraft - Flying under meteorological minimum conditions

It was alleged that the applicant flew or attempted to fly when tool boxes were not secured so as to prevent shifting in flight. The minister suspended the pilot's licence for 30 days.

On review, the Tribunal was satisfied that the evidence established a breach of s. 218(c). However, the Tribunal reduced the suspension to 14 days, stating that there was no evidence that the tool boxes shifted in flight or that they blocked or restricted the exit of the passengers.

The pilot was alleged to have flown VFR flight limitations. The Tribunal accepted the evidence presented and confirmed the contravention of s. 543 and the suspension of the pilot's licence.

As to the negligent or reckless operation of an aircraft, the Tribunal held that a prudent pilot would not have pressed the weather by flying at or near tree top level in order to maintain ground visibility, thereby endangering the lives of his passengers. The Tribunal confirmed the Minister's decision to suspend the pilot's licence for 30 days. The suspensions should run concurrently.

REVIEW DETERMINATION Dryvynsyde

July 10, 1987
Vancouver, British Columbia

With respect to s 218(c) to confirm the Minister's decision but reduce suspension to 14 days. With respect to s 543 and 520(1) to confirm the Minister's decision with the exception all suspensions in s 218(c), 543, 520(1) to run concurrently commencing midnight July 26, 1987.

The applicant ("Brace") seeks to have the decision of the Respondent ("Minister") to suspend his Commercial Pilot Licence YZC 223524 for a total period of 90 days cancelled on the grounds that he did not contravene the following Air Regulations:

"218 No person shall fly or attempt to fly any aircraft unless:

(c) the equipment and any cargo carried are secured so as to prevent shifting in flights."

"543. VFR flights shall be made in accordance with such weather minimal as the Minister may by order prescribe for such flights."

"520(1) No aircraft shall be operated in such a negligent or reckless manner as to endanger or be likely to endanger the life or property of any person."

The Minister prescribed by Air Navigation Order, Series Number V, No. 3, Paragraph 5 as follows:

"5. The weather minimal for VFR flights elsewhere than in controlled airspace or aerodrome traffic zones are as follows:

(a) at or above 700 feet from the ground or water,

(i) flight visibility shall be 1 mile,

(ii) distance of an aircraft from cloud shall be 500 feet vertically and 2,000 feet horizontally; and

(b) below 700 feet from the ground or water,

(i) flight visibility shall be 1 mile,

(ii) distance of aircraft from cloud shall be clear of cloud."

Section VII of Air Navigation Order, Series V, No. 3, designates the Queen Charlotte Islands as a special area where the required flight visibility shall be 2 miles rather than the 1 mile set out in Paragraph 5.

Brace was advised in a letter dated December 31, 1986 that the Minister had determined that he had contravened each of the foregoing Air Regulations and that his Commercial Pilot Licence was to be suspended for 30 days for each contravention with the suspensions to be consecutive rather than concurrent.

The Minister and Brace are agreed on the following facts:

1. The aircraft ("C-FOMI") was on a flight between McClinton Bay, B.C. and Prince Rupert B.C., at the time of the accident.

2. The aircraft at the time of the accident was owned and operated by North Coast Air Services Ltd., ("North Coast") Box 610, Prince Rupert, B.C.

3. The pilot of the aircraft was Marcus Brace. At the time of the accident, Brace had a valid Commercial Pilot's Licence, No. YZC 223524. He did not hold an instrument endorsement.

4. The aircraft had three passengers on board: Parish Lalonde, Herman (Hank) Snowwhite and Theodore (Ted) Widske.

C-FOMI, piloted by Brace, left McClinton Bay in the Queen Charlotte Islands on the afternoon of September 1, 1986 en route to Prince Rupert, British Columbia. Approximately 10 to 15 minutes into the flight the aircraft ran into severely deteriorating weather, forcing it to descend in order that Brace might maintain visual contact with the ground. C-FOMI was flown in out of cloud at a level described by one witness of approximately 50 feet above the tree tops and eventually crashed near Tow Hill. Parish Lalonde was killed in the accident.

The Minister called three witnesses. I propose to review their evidence in the light of the specific infractions of which Brace had his Commercial Pilot's Licence suspended.

AIR REGULATION 218 (c)

Herman (Hank) Snowwhite was the first witness called by the Minister. He has been flying in the British Columbia coastal area for 12 years and is a mechanical contractor. On the day in question he had finished a contract for Olympic Forest Products and was en route to Prince Rupert with 4 tool boxes and 1 large cardboard box containing his welding mask, gloves, a come-along and other like tools and clothing. Hank Snowwhite was seated on the bench behind the pilot's seat. He stated in his evidence that he placed one tool box on the floor beside him and the other 3 tool boxes and the cardboard box in the luggage compartment. He did not see if the tool boxes were tied down. Certainly the tool box on the floor beside him was not tied down.

Brace, in his evidence, made reference to the Beaver Manual and the fact that it contained no information on how to secure cargo. Brace referred to the fact that there was no cargo net provided and even if a net had been provided there were no stanchions to which a cargo net could be secured. He stated that it was his practice to store cargo in such a manner that it secured itself.

On the evidence it is clear that Mr. Snowwhite's tool boxes were not "secured so as to prevent shifting in flight". To allege that they were loaded in such a manner as to be "self-securing" is not in compliance with the provisions of Section 218 (c). I have therefore concluded that Brace was in contravention of Section 218 (c) and confirm the decision of the Minister relative to his determination as to the contravention. However, I am substituting a suspension of 14 days as opposed to the Minister's suspension of 30 days as there was no evidence that the tool boxes shifted in flight or that they blocked or restricted the exit of the passengers from C-FOMI after the crash.

Air Regulation section 543 and Air Navigation Order v. Number 3, paragraphs 5 and 7

Brace stated that C-FOMI departed McClinton Bay at approximately 1355 hours local time. Hank Snowwhite's evidence puts the time at 1345 hours. I do not believe anything significant turns on the actual moment of departure.

Certain events prior to C-FOMI's departure are pertinent. Brace gave evidence that the weather at McClinton Bay at the time of departure was VFR. He estimated a ceiling of 2,000 to 2,500 feet above ground and flight visibility of at least 10 miles. Snowwhite gave evidence that the visibility, as far as he could judge it on departure from McClinton Bay, was approximately 3 miles. Mr. Snowwhite was to have departed McClinton Bay the preceding day but the aircraft scheduled to pick him up did not arrive due to foggy conditions. On the morning of September 1, 1986, there was some doubt if TPA (the carrier expected the preceding day) would be making the trip. When informed that TPA would not be coming because of the weather, North Coast was contacted. North Coast indicated they might be able to make the trip. Mr. Snowwhite was later informed that North Coast had an aircraft en route.

Brace gave evidence about his investigation of weather conditions prior to departing from Prince Rupert. It is to be noted that Bruce Goodman, a witness for Transport Canada, gave evidence concerning the weather in the area and produced certified copies of Environment Canada's weather reports for the Prince Rupert and Sandspit areas taken at the approximate time of C-FOMI's departure from McClinton Bay. Evidence was also introduced as to the state of the weather at Langara, a lighthouse north of Massett (the Langara information was not available to Brace). The weather was above VFR minima at Prince Rupert and Sandspit but below at Langara. Goodman gave evidence that weather conditions in the Queen Charlotte Islands are extremely localized and the only weather information which would have been relevant would have been a weather report from the specific area. Short of such evidence I must rely on the evidence given by the witnesses.

Brace states that approximately 10 minutes into the flight, weather conditions began to deteriorate. This is consistent with the evidence of Hank Snowwhite. I was shown, on an aviation map of the area, the location north of Kumdis Island where both Hank Snowwhite and Brace observed the deteriorating ceiling. There is a slight difference in their evidence as Brace appeared to have become concerned with the weather a little later than Hank Snowwhite who noticed what he described as fog banks as they rounded the top of Kumdis Island. Hank Snowwhite said that C-FOMI first flew through the fog banks coming to sunny areas on the other side. The fog banks, according to Mr. Snowwhite, became thicker and C-FOMI was, after a time, not able to penetrate them. At this point Brace descended to an altitude estimated by Mr. Snowwhite to be approximately 50 feet above the tree tops. Mr. Snowwhite states that they flew like this for some time and that the aircraft brushed the tree tops at one point before the crash occurred. Brace disputed the allegation that C-FOMI was flying through fog banks and described the weather as a combination of rain, fog and low cloud.

After careful consideration of the evidence I have reached the ineluctable conclusion that Brace was flying below VFR flight limitations prior to the moment of the crash.

Having reached this conclusion, I have determined to confirm the decision of the Minister in all respects.

AIR REGULATION 520(1)

I now turn to the determination by the Minister that Brace operated C-FOMI in contravention of Air Regulation 520 (1).

The Minister called Timothy Cole, a pilot since 1964 with approximately 8,400 hours and an Air Transport rated Commercial Licence. Mr. Cole has flown in Quebec, Ontario, Saskatchewan and for the last ten years in British Columbia. Brace accepted Mr. Cole's qualification as an expert in "bush flying".

Mr. Cole gave evidence about flying in the area of the Queen Charlotte Islands with particular reference to the difficult weather conditions. He described the difficulties of getting reliable weather reports due not only to the localized nature of the weather but also to the dearth of reporting weather stations. It was Mr. Cole's opinion that Brace should have turned back to McClinton Bay as soon as he encountered the deteriorating weather after rounding the northern tip of Kumdis Island. Mr. Cole stated that the cardinal rule of bush flying was always "to leave yourself an out". It was Mr. Cole's opinion that Brace, by "pressing the weather", made it difficult for him to reverse his course as the weather had closed behind him.

In his evidence Brace described the events of the day. He was asked by his employer if he could take a trip to Eden Lake to drop off a passenger and some freight and then proceed to McClinton Bay to pick up three passengers for Prince Rupert. Prior to departing Prince Rupert for Eden Lake Brace gave evidence that he reviewed the available weather information with his dispatcher who was not able to give him any local weather information. He ascertained particulars of a helicopter which was to have been in the area and departed for Eden Lake. Visibility to and at Eden Lake was good and Brace dropped off his passenger and freight and proceeded to McClinton Bay. The facts pertaining to weather conditions on' the flight from McClinton Bay to Prince Rupert are set forth above.

Brace gave evidence that he did not return to McClinton Bay for the following reasons:

1. He determined, as pilot in command of C-FOMI, that it was safer to continue on course because he suspected that the weather dynamics were such that visibilities had deteriorated on the return course;

2. He was concerned that he might become disoriented if he reversed course because the gyro compass was not working and he thought the tools brought on board by Mr. Snowwhite were affecting the magnetic compass;

3. He believed he was 4 minutes from the shore line which would bring him over water thereby affording an opportunity to land safely and beach C-FOMI if weather conditions did not improve when he passed the shore line;

Brace made reference to the lack of cooperation from his employer in briefing him relative to local flight conditions. He pointed out that he had joined North Coast on August 10, 1986 and had received little, if any, training. He was operating with a map of the local area which he had to provide for himself and which had been replaced by a more current edition. Brace also admitted he was not aware that the VFR flight visibility minima in the Queen Charlotte Islands area was 2 miles rather than 1 mile. Brace also stated that he "did not knowingly enter fog banks". He thought he was encountering low level strata cloud.

Much has been written on the meaning of negligence. The question before me, put simply, is: did Brace operate C-FOMI on the afternoon of September 1, 1986 in a negligent manner thereby endangering the life or property of any person. It is given that the lives of the passengers on board C-FOMI were endangered by Brace's piloting of the aircraft that afternoon. The issue is, was Brace negligent.

Negligence may be described with respect to the present circumstances as a breach of the duty of care required of Brace towards his passengers in order to avoid causing them harm. In determining the duty of care required of Brace, his intentions are not relevant. One must ask the question: should Brace have known or ought to have known that the foreseeable, natural and probable consequences of his flying in the manner described above would cause harm to his passengers.

When first considering this matter I had some difficulty in determining whether Brace was mainly guilty of a succession of errors of judgment or was he in fact negligent. Was it prudent for a pilot in command to press the weather by flying at or near tree top level in order to maintain ground visibility, having it in mind that in 4 to 5 minutes flying time he would be clear of ground and over water? Is it relevant to the issue of negligence to consider Brace's lack of experience on the West Coast and lack of his ground and air training by his employer?

On reflection, I have concluded that Brace was the pilot in command of C-FOMI and as such had an obligation to assume the responsibilities that go with that position. Brace knew, or ought to have known, that the natural and probable consequences of his flying C-FOMI at the levels described above would be that C-FOMI might crash, which indeed it did, fatally injuring one passenger.

In view of the foregoing I had determined to confirm the decision of the Minister to suspend Brace's licence for 30 days for operating C-FOMI in breach of Section 520 (1) of the Air Regulations. I'm substituting my decision to that of the Minister relative to the running of the suspension and hereby determine that the suspension should run concurrently with the suspensions referred to above. Deciding this, I am mindful that Brace has not flown in his capacity as a commercially licensed pilot since the date of the accident, some 10 months ago. In order that Brace have an opportunity to review my reasons for the foregoing determinations and to file an appeal if he is desirous of so doing, I have determined that the concurrent suspensions referred to above will commence midnight July 26, 1987.

Date modified:
2010-03-31