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CAT File No. A-0014-02

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport

- and -

John R. Burnham

C.R.C., c. 2, s. 210(1)(a)

Certification of Aircraft as Airworthy - Standards to be met

The pilot flew a damaged aircraft form Deer Lake to Stephenville. The Minister alleged that the certificate of airworthiness was not in force and suspended the pilot's licence for 14 days.

On review, it was held that the pilot, an AME, has acted with due diligence and the Minister's decision was reversed. The pilot stated he checked the certificate of airworthiness and the CCI and both were in order. It was held that a pilot is not expected to inspect a logbook and look for discrepancies with the same diligence as an airworthiness inspector.

On appeal, the decision of the single member was overturned and the suspension of the pilot's licence was confirmed. It was held that the aircraft was damaged and repairs should have been made or a ferry permit obtained. The damage to the aircraft did affect its airworthiness. The certificate of airworthiness was not valid and a flight permit was not obtained before the damaged aircraft was flown and the conversion from floats to wheels had not been certified.

The lack of intent to contravene the legislation cannot be invoked as a defence because s. 210(1)(a) imposes a strict liability obligation.

REVIEW DETERMINATION Collins

June 23, 1987
Deer Lake City, Newfoundland

That the determination of the minister to suspend the applicants private license yzp 20277 pursuant to section 5.9 of the Aeronautics Act not be affirmed.

Section 210 of the Air Regulations reads as follows:

No person shall fly or attempt to fly an aircraft, other than a Hand Glider or Ultra Light aeroplane unless there is in force in respect of that aircraft

(A) A certificate of Airworthiness issued under this part or under the laws of the Country in which the aircraft is registered or

(B) A flight permit issued under this part, And unless all conditions upon which the certificate or permit was issued have been complied with.

The Minister alleges that Mr. John R. Burnham by flying Cessna C-GAEH from Deer Lake, Nfld. to Stephenville, Nfld. on November 19, 1986 was aware or should have been aware that the certificate of Airworthiness was not in force and has ordered his pilot license No. YZP 20277 suspended for 14 days.

Mr. Burnham requested a review by the Tribunal. A Hearing was held on June 23, 1987 at Deer Lake, Nfld.

Mr. H.G. Carter, A/Regional Manager Aviation Enforcement of Transport Canada acted for the Minister.

Mr. Carter briefly outlined the Minister's case and placed in evidence as Exhibit 3 a printout of the aircrafts' file, it shows a Cessna 185 C-GAEH registered in the name of Wilfred Letto of L'Anse Au Clair, Nfld. Also placed in evidence was a photocopy of page 56 of the aircrafts Journey Log Book. This was Exhibit 4. A memo to file from Mr. Carter was numbered Exhibit 5.

Mr. Carter called as a witness Mr. David Hoyt, an inspector with Transport Canada. Mr. Hoyt testified he was advised by the R.C.M.P. in Forteau, Nfld. that aircraft C-GAEH had been damaged in a take-off accident on September 22, 1986. Mr. Hoyt provided to the Tribunal a series of colour photo of the damage to the aircraft and a letter from the R.C.M.P. describing the photos because of pending action against the aircrafts owner the photo could not be retained by the Tribunal with agreement of Mr. Burnham photocopies were submitted and numbered Exhibit 6. These photos show dents and distortion of the aircrafts skin in the area of the rear float fitting on the lower right fuselage. Photo No. 6 shows extensive structural damage to the right float just aft of the rear spreader bar.

Mr. Hoyt stated that in the course of his investigation he discovered that the aircraft had been transferred from floats to wheels and flown to Deer Lake on November 11, 1986 by the owner. No certification had been made in the Aircraft Log Book for the change over from floats to wheels.

Mr. Hoyt also discovered that the aircraft was flown from Deer Lake to Stephenville by Mr. Burnham on November 19, 1986 and no flight permit was requested or issued.

Mr. Carter in summing up stated that the Department is aware that there may be time where it may be necessary for a pilot operating in the bush to fly a damaged aircraft to a base in order to save the aircraft from further damage or total loss without obtaining a flight permit. It is not the Department policy to proceed against the pilot in such cases. However in this case the aircraft was in no danger at Deer Lake Airport.

Mr. Carter also pointed out that Mr. Burnham holds an Aircraft Maintenance Engineers License in both category "A" and "B" and as such should have been aware upon inspecting the damage to the aircraft it was consistent with damage occurring on floats.

Mr. Carter, referring to the Log Book pointed out that the three previous entry prior to the flight to Deer Lake Airport were from LAC 1155 which apparently is the name of a Lake near Forteau, Nfld.

He also referred to the Log Book entry for September 22, 1987. In the remarks column is the notation "Damage R float on take off" indicating the aircraft was on floats at that date.

Mr. Carter took the position that if Mr. Burnham checked the Log Books he could not have missed that the wheel equipped aircraft at Deer Lake Airport had been operating on floats and should have checked to insure an entry had been made for the change over, failing to find one he should have obtained a flight permit before flying the aircraft to his repair facility at Stephenville.

By not doing so he is in breach of Section 210 of the Air Regulations.

Mr. Burnhams' defense was in the form of a summation. He confirmed that he is the holder of an A.M.E. License in both Cat "A" and "B" and stated that sometime after September 22, 1986 he had received a call from the aircraft owner advising him that the aircraft was damaged and requested that he travel to Forteau to inspect the aircraft and ferry it to Stephenville for repairs.

He agreed to do so but due to weather and other causes he was prevented from doing so.

In November he received a phone call from the owner advising him that the aircraft was now at Deer Lake Airport and requesting that he pick it up and repair it. He flew to Deer Lake on November 19, 1986 inspected the damage to the aircraft. The aircraft was on wheels. He determined the repairs fitted into minor repair category which would not invalidate the C of A. Later in the course of the work it became necessary to re-classify the repair as major when it was discovered that two stringer had to be replaced.

Having satisfied himself that the damage did not affect the C of A. He stated he checked the Log Book to insure it was there and also the CCI report. Both were in order.

Mr. Burnham stated that the aircraft was on wheels the floats were not with the aircraft. He advised the Tribunal that on two previous occasions he repaired this aircraft for the same owner and on each of these occasions he requested and obtained a flight permit and had he been aware that the C of A was invalid due to the float changeover not being certified he would only have had to make a phone call and put an entry in the Log Book since he holds a AME License.

Air safety is not at issue in this case. There is nothing to indicate the aircraft, the pilot or the public were placed in danger by the flight from Deer Lake to Stephenville.

That the flight took place is not an issue. Mr. Burnham does not deny flying the aircraft.

What is at issue is whether or not Mr. Burnham knowingly flew the aircraft while the C of A was not in force and how extensive an investigation of the Log Book is required of a pilot before undertaking a flight.

Mr. Burnham arrived at Deer Lake Airport on the 19th day of November to ferry back to Stephenville, a 35 minute flight, a damaged Cessna 185 for repairs. That the aircraft was damaged and that it was on wheels was no surprise. The aircraft had been flown from Forteau to Deer Lake Airport by the owner a few days earlier. He also knew it was damaged. The owner discussed the accident with him nearly two months before.

Mr. Burnham's prime concern would have been the extent of the damage and what was involved in the repair. Mr. Burnham expertise is as an Aircraft Maintenance Engineer.

There are three requirements for a pilot to satisfy before undertaking a flight in an aircraft he had not flown for sometime. First, he must insure that a C of A is in the aircrafts Log Book, secondly, he must insure that the annual CCI report has not expired and thirdly, he must insure that sufficient time remains since the last inspection for the intended flight.

Mr. Burnham stated he checked the C of A and the CCI and both were in order. He must have been satisfied sufficient time remained for the 35 minute flight.

Therefore, there would be no need for Mr. Burnham to scrutinise the entries on page 56 of the Log Book.

I do not think one can expect a pilot to inspect a Log Book and look for discrepancies with the same diligence as an Airworthiness Inspector.

I am satisfied that it did not occur to Mr. Burnham that the C of A was invalid by virtue of the change over from floats to wheels not being certified.

I therefore find no intent on Mr. Burnham's part to circumvent the Act.

In my Judgement Mr. Burnham acted with due diligence and the Minister's decision should not be upheld.

APPEAL DETERMINATION Crofton, Prescott, Richard

October 9, 1987
Stephenville, Newfoundland

The Tribunal grants the appeal and confirms the suspension of the Respondent's pilot licence no. YZP 20277 for a period of fourteen days. This suspension will come into effect on November 2, 1987 at 00:01 and will remain in effect until November 15, 1987 at 11:59.

This is an appeal from a decision rendered by Tribunal Member James J. Collins, dated July 4, 1987, reversing the Minister's decision to suspend the Respondent's pilot licence for a period of fourteen days pursuant to a notice dated April 10, 1987 alleging a violation of Air Regulation 210(1)(a).

The Applicant in his request for appeal alleges that:

1. The determination of the Tribunal member was not supported by the facts and the evidence presented at the hearing.

2. The Tribunal member erred in his interpretation of section 210 of the Air Regulations by importing a mental element, intention, to the offence.

3. The Tribunal member erred in determining that the defence of due diligence was established on the evidence presented at the hearing.

The Appeal was heard on the basis of the record and no new evidence was presented. A preliminary motion was introduced by the Respondent seeking to have the matter dismissed because of late filing of the request for appeal by the Applicant. Section 6.2(1) of the Aeronautics Act provides that an appeal must be filed with the Tribunal within ten days after the determination. Section 20.(2) of the Civil Aviation Tribunal Rules stipulates that the decision is deemed to have been rendered on the date that it is received by the Parties (see also Sections 5 & 6 of the Civil Aviation Tribunal Rules). In this case, the appeal was filed July 17, 1987 and the decision received by the applicant July 10, 1987 as evidenced by the Canada Post Acknowledgement of Receipt. The ten day requirement was therefore observed. For this reason, the Tribunal ruled against the motion.

On the basis of the record before it and after having heard the representations of both Parties, the Tribunal finds that, while it concurs with the Member's recitation of the facts, it disagrees with his conclusions.

The Member, in his decision, stated that the Respondent's prime concern would have been the extent of the damage and what was involved in the repair (see reasons for decision last page, paragraph 1).

The fact that the aircraft had sustained damages is clear from the record (see transcript pp. 14, 18, 19 & 26). When such a situation arises, the requirements to maintain the Certificate of Airworthiness in force are that repairs be made and a serviceable statement issued or that a flight permit be obtained before the aircraft is flown. The Respondent argued that it was his opinion, based on a cursory examination, that the damages were of a minor nature and that these measures were therefore not required. The legislation does not contemplate that the Certificate of Airworthiness remains in force when minor damages are sustained or that a flight permit is only required in cases of major damages. While it is true that defects such as a burnt out light bulb may not require obtaining a flight permit, damages which impact on the airworthiness of the aircraft do. In the circumstances under consideration, the Tribunal finds that the damages to the aircraft affected its airworthiness.

The Member further stated that, in his view, it also did not occur to the Respondent that the aircraft was on floats when the damage was sustained. The Respondent had stated for the record that the owner of the aircraft has advised him "that there was a slight kink in the fuselage and that he did want it repaired because it was an obvious damage" (see transcript at p. 23). He had also given a positive answer to the question posed by the Applicant's representative... "as an engineer looking at the wrinkles on that fuselage, did it not seem apparent to you that that would have occurred when the aircraft landed on floats?" (see transcript p. 21). The logbook indicated that the aircraft had been flying off a lake and contained the statement in the "Remarks" column "Damaged "R" float on take off". This remark is noted two lines above and on the same page as the entry made by the Respondent before his flight.

The Tribunal finds that the Respondent should have known that the aircraft had been on floats when the damage was sustained and had been changed from floats to wheels without the proper certification. The Certificate of Airworthiness was not valid because a flight permit was not obtained before the damaged aircraft was flown and because the conversion had not been certified.

The Tribunal further finds that the lack of intent to contravene the legal requirements cannot be successfully invoked since section 210(1)(a) of the Air Regulations imposes a strict liability obligation. Finally, the Tribunal finds that the Respondent's special knowledge as a pilot and AME as well as his professional experience do not allow for the conclusion that he acted with due diligence under the circumstances.

For these reasons, the Tribunal grants the appeal and confirms the suspension of the Respondent's pilot licence no. YZP 20277 for a period of fourteen days. This suspension will come into effect on November 2, 1987 at 00:01 and will remain in effect until November 15, 1987 at 11:59.

Date modified:

2010-03-31

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