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Old 29th Dec 2012, 18:50   #61 (permalink)
9.G
 
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I think, I'll have another coffee.
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Old 29th Dec 2012, 20:05   #62 (permalink)

 
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New Member. Hi!

It's obvious that a crew not reading checklists, acting like cowboys shouldn't be in charge of aircraft.

But pros should know when the situation calls for working outside of the SOPs, and not robotically fly to the scene of the accident reading their checklists.

The problem with a SOP can arise when say during an engine restart, they require a full shut down/cage procedure, and you have a mountain just ahead. Or maybe you just leveled at FL450 and there is nothing about checking your O2/mask. ( I added that)

Disregarding SOPs out of hand is silly and unprofessional, but at the same time, there are a ton of accidents where the SOPs got in the way, for instance always trying a fly an aircraft off after VR. Consdier the Jack screw Alaska issue. Instead of flying for another hour, calling dispatch, flipping through manuals, someone should have said, 'hey we've got a flight control problem, that supercedes schedules, my retirment, chain of command, union issues, the check list, let's get it down'.

So optimally we have pilots who can make a judgments where the SOPs mitigate 99% of the potential problems, but maybe you are faced with something where the variables aren't covered in the book. Now make a decision. Some will call a guy a cowboy for disregarding a SOP but the litmus has always been 'yeah, but I saved a plane load of passengers'.
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Old 30th Dec 2012, 03:30   #63 (permalink)
 
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Folks,
One of the sad things about the Australian approach to matters such as 9G raises, the "headset rule", is that the final line of the Australian rule would read:

Strict Liability Offense, XX penalty points. For Strict Liability Offense, see Section XX of the Criminal Code.

The present draft of an Australian Part 91 makes "interesting" reading, with some rules incapable of legal definition, but a breach, nevertheless, is a criminal offence.

For example, what is "normal fuel flow" for any aircraft, when it comes to calculation of such as Fixed Final Reserve or other reserves. The CASA answer is to require a manual that has flat block figures, regardless of weight and temperature. That is just one example.

Similarly, all the provisions of an "accepted" Operations Manual (in Australia they are "accepted". not "approved") which will contains SOPs, are enforceable, and a breach is essentially a criminal act, unless the PIC can prove otherwise --- reverse onus of proof.

It certainly hasn't done anything for the Australian air safety record --- based on ICAO accident definitions, not Australian "modified" definitions --- just have a look at the record.

Tootle pip!!

Last edited by LeadSled; 30th Dec 2012 at 03:37.
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Old 30th Dec 2012, 09:38   #64 (permalink)
9.G
 
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L.S. this approach is adapted not not only by CASA but many others. Worth a while to note that each jurisdiction will press for its' legislation in case something happens. A movie Flight comes to my mind where an exceptionally skilled Mr.Washington has saved the day and yet went to jail for betraying the public trust. The principle in this particular example is what really matters namely the reason for the mechanical failure causing almost a crash is irrelevant when it comes to scrutinizing the human actions. Some investigators are very keen to connect the dots and call negligence a contributing factor. Does it ring the bell? Last but not least, there's theory and there's the real world with judges, juries and prisons. Any commander out there always thinks bit like a lawyer unlike f/o, nothing wrong with that as it's just a matter of experience. No matter how we feel bout the rules and regs, that's what the lawyers, judges, juries and investigators will go by. The choice is yours.

P.S. Official investigation and media speculation. The likely cause of the crash is a pilot error, but the investigation is still in progress. Two flight data recorders recovered at the scene are being examined by Interstate Aviation Committee experts. Moscow plane crash: Carnage caught on camera, investigation in progress (VIDEO, PHOTOS) — RT

Last edited by 9.G; 30th Dec 2012 at 10:14.
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Old 31st Dec 2012, 06:58   #65 (permalink)
 
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9G,
I would not entirely agree with you about many other county's rules, the US being a prime example, not all offenses under the FARs are criminal offenses, many are civil or administrative offenses.

In Australia, the whole of the aviation regulatory structure is criminal law. Making an arithmetic error in adding up your log book is a strict liability criminal offense.

A basic tenant of criminal law is that there must be intent --- in the case of a strict liability offense under Australian aviation (or any) law, there is no need to show intent, the prosecution only needs to demonstrate the facts of the offense.

In the Australian criminal code, the only defense is "honest and reasonable mistake", and it cannot your mistake, but something over which you had no control, that caused the offense. For example, you violated controlled airspace without a clearance, because of a mistake in an aeronautical chart, and there was no NOTAM about the mistake.

In an area where pilot judgement and decision making is called for, in legal theory you cannot have a strict liability offense, because the facts of the offense cannot be "black and white".
That doesn't stop our lot.

Many years ago, Qantas had a jet upset, due to an instrument malfunction. The pilot who saved the aircraft was not even on the flight deck at the time. In the ensuing investigation, his contribution to the event was ignored, he was threatened with prosecution for reducing to structural damage speed, in the absence of the Captain, who, on return to the flight deck, thanked the F/O for so doing, with comments along the line of "I should have thought of that".
However, what the investigator heard on the voice recorder was the Captain ordering "standard cruise", and in the absence of the Captain, the F/O "ordered" structural damage cruise -- and the damage was significant.
As far as the Airstapo was concerned , that was "mutiny on the high seas".
After very strong union agitation, and some political intervention, the charge was dropped, but nevertheless, the F/O who saved the aircraft was the only pilot who was officially reprimanded.

An outstanding example of the stupidity that can occur, and continues to occur with the Australian approach to aviation law and enforcement.

Of course, one you wind up with a criminal record, particularly an aviation criminal record, you access to international travel can be severely limited, just look at the USvisa/Homeland Security rules.

As many Australia pilots have discovered, to their severe professional cost.

Tootle pip

Last edited by LeadSled; 31st Dec 2012 at 07:01.
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Old 31st Dec 2012, 09:39   #66 (permalink)
 
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The term in itself says it all: Standard operating procedures.

The word standard implies its counterpart non-standard.
As pilots we should be trained to expect the unexpected, thus expect the non-standard and be able to act accordingly. If this is limited to emergency situations, the limits are too rigid, because we face the non-standard on a daily base.

If the approach of any company or regulator is that the non-standard automatically means non-compliance with the standard, we face the "pomstralian conundrum"! Any company or regulator who considers such non-standards as punishable or in some cases even criminal, is not helping to enhance safety.

We are quick to condemn the culturally tied mentalities who would "rather crash than lose face", but we should also be careful not to cultivate the "rather crash than deviate from sops".

The real danger however is the trend to train only up to sops and nothing beyond. The trend of installing very young TRI/Es coming out of this generation does not help either. It definitely explains the rigid clinging to sops, because there is nothing more, but it is counterproductive to overall safety in civil aviation.

Sops are a perfect base for training and operation, but airmenship, common sense and experience should never be allowed to be pushed aside by religiously enforcing sops.

Last edited by Gretchenfrage; 31st Dec 2012 at 09:41.
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Old 31st Dec 2012, 10:11   #67 (permalink)
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L.S. Civil aviation legislation I couldn't agree more with you regarding the Ozz approach however not entirely as well. The words appearing under some CARs or CASRs 'An offense against regulation ... is an offense of strict liability' imply that the offense is such that it is not necessary to show a criminal intent in order to prove a breach of the regulation — much the same as the road traffic regulations. The criminal law will be applied where referred to and in case a fault element for a particular physical element such as intention, knowledge, recklessness or negligence is present. In case of an accident with casualties for sure. Otherwise penalties as per civil aviation act are applied. That's what I meant by saying many other countries apply the same principle. They include penalties section in their legislation specifically applicable to aviation.

Section 20A

Reckless operation of aircraft
(1) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.

(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.

[For penalty see Section 29.]

Imprisonment for 5 years. .

Quote:
Simple negligence is the least culpable level of legal liability. It is usually defined as the failure to exercise "ordinary care in the circumstances." Liability does not attach to such misconduct unless the negligence is a cause of injury or damages. In the aviation industry, the violation of regulations such as the FARs, and failure to comply with good operating practices or procedures, may constitute a breach of the duty to exercise ordinary care. In this regard, airline and Part 135 charter operators are held to the "highest duty of care" because they act as common carriers when holding themselves out to the public — they carry anyone for hire. Private operators on the other hand are generally held to the standard of "ordinary care."
Criminal Liability in Aviation

Last edited by 9.G; 31st Dec 2012 at 11:52.
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Old 31st Dec 2012, 11:23   #68 (permalink)
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Gretchenfrage, SOP as such isn't a binding document that's why EU OPS has mandated OPS manual as OM A,B,C,D. OM A is an approved and the rest is accepted by authorities. Violations of those manuals under normal circumstances are offenses. Usually operators establish policies of manual compliance to protect themselves from liability. So does the manufacturer. The bottom line is the pilot is the easiest target in any case. A pilot can do him/herself a favor by simply complying with manuals.
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Old 31st Dec 2012, 13:17   #69 (permalink)
 
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True, but if you look at todays OMAs, they are thicker than they were some time ago, because more and more sops are written in stone in them. The rest is in FCOMs, agreed, but a lot of references there to the OMA. The main part of todays training goes into memorising articles, sops and endless briefings until we are numb to any real world common sense. I'd love some more hands on rather than "that's not the correct call".

We have come a long way from "don't hurt anything or anyone" to todays manuals who read like the fineprint of fishy software agreements.
The main reason, unfortunately, is not improvement of safety, but lawyers of manufacturers, operators and regulators trying to discard any kind of responsibility by shoving everything to the last one in the food chain.

By asking us to adhere strictly to these sops, all other players wash their hands in the black and white printed jungle.
And we all continue to play the game and quite often the scapegoat.

It's like with some religions:
The problem is not the message, it's the interpretation.
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Old 31st Dec 2012, 14:23   #70 (permalink)
9.G
 
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The Term SOP is long in the past. It's OM B nowadays and speaking of EU legislation part of the legally binding operations manuals. SOP is a mere recommendation of the manufacturer nothing else. OM A creates a legal framework for operations, something like main law body and is tightened up to the AOC specs. OM B is the executive order if you wish of how to comply with A using a tool such as aircraft. C are aeronautical manuals such as charts. D is training. A clever pilot knows his legal framework and understands the implications of such along with the consequences. On daily basis there's millions of violations all around the world but as long as everything ended well, legal machinery is in hibernation. As soon as the sh&t hits the fan that's when the merciless giant awakens and slaughters the scapegoat without compassion or remorse. Luckily religions aren't part of legislation anymore.

Last edited by 9.G; 31st Dec 2012 at 15:41.
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Old 31st Dec 2012, 23:21   #71 (permalink)
 
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9G
Using an example from the Australian Civil Aviation Act 1988 (S.20A) is not really an example of what I was talking about.

The serious offenses that carry a potential custodial sentence are all in the Act, and are not strict liability offenses.

It is in the CARs/CASRs that you see the over-reach of the use of "strict liability". In much Australia legislation, strict liability is used for minor offenses, in the motoring area such as parking fines or minor breaches of speed limits.

It is the free use of strict liability in aviation regulations, in a way completely at odds with the traditional view that there must be a "mental element" (mens rea) for an offense to be treated as a criminal offense. The maximum penalty under the CAR/CASRs is 50 penalty points, but you still accumulate a criminal record.

Not only is this increasingly not the case, we are now seeing "reverse onus of proof" appearing. Once again, this is contrary to any reasonable interpretation of criminal law principles, "innocent until proven guilty' and the Crown (prosecution) must prove it's case.

Another increasingly disturbing trend, in aviation,(but generally not other Australian law) is for the meaning of "beyond a reasonable doubt" to be watered down to a lower level of proof required -- or put another way, the bar for "beyond a reasonable doubt" has been lowered --- for aviation.

Tootle pip!!

Last edited by LeadSled; 31st Dec 2012 at 23:22.
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Old 1st Jan 2013, 15:58   #72 (permalink)
9.G
 
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I've been digging a bit and that's what I found out:

CASR Division 13.K.2
Demerit points scheme
13.370 Offences to which demerit points scheme applies (Act s 30DT)
(1) All offences under CAR and CASR that are specified as strict liability offences are prescribed as offences to which Division 3D (Demerit points scheme) of Part III of the Act applies.
(2) The number of points that are incurred in relation to an offence to which that Division applies are as follows:
(a) if the maximum penalty for the offence is 10 penalty units or less — 1 demerit point;
(b) if the maximum penalty for the offence is more than 10 penalty units but less than 26 penalty units — 2 demerit points;
(c) if the maximum penalty for the offence is 26 penalty units or more — 3 demerit points.

It seems to me that Aussies have established a similar point system to traffic violations. Civil Aviation Safety Regulations 1998

Strict liability is simply a fact of the violation, without the burden of proof as you already stated. Sample, if you land without clearance there's no need to prove a criminal intent the mere fact is sufficient. That's all it is to it. The fact that the definition of strict liability is contained in the criminal law is the legacy of the common wealth legislation.

I'm not an expert of Ozz criminal law but it seems really odd that one would have a criminal record for a violation labeled as strict liability in down under. Only in case of injuries or fatal outcomes a criminal investigation will be launched by the DA office not CASA. That's when the DA office has to prove mens rea and the burden of proof is upon the DA office. Nobody is gonna be declared guilty till proven otherwise. For the conviction as per criminal law there must be a trial, that's where the principle of reasonable doubt comes in. In any case the plaintiff will use the results of the CASAs investigation to underline the accusations.

That's my take on that.

reference CIVIL AVIATION ACT 1988
Civil Aviation Regulations 1988

Last edited by 9.G; 1st Jan 2013 at 16:02.
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Old 1st Jan 2013, 16:21   #73 (permalink)
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Civil Aviation Safety Authority - Infringement Notices/Demerit Points here's what I was talking bout.
Infringement notices are another enforcement tool. They impose administrative fines and are a cheaper and faster alternative to prosecution for breaches of the regulations.

Because they still require the criminal standard of evidentiary proof and may require further investigation, they are generally only issued for strict liability offences. Enforcement Manual, Chapter 8 - Infringement Notices - (Administrative Fines)

If a holder of a civil aviation authorisation, served with an infringement notice (AIN), chooses to pay the fine they will incur demerit points but will not be subject to any further criminal proceedings in relation to that offence.

If a recipient of an AIN elects to have the matter dealt with by the court, it will be open to the prosecutor to charge the recipient with other offences arising out of the same matter. If convicted or found guilty, a holder will incur demerit points in relation to each offence.

The Demerit Points Scheme is a system set up under Division 3D of Part III of the Civil Aviation Act 1988 and provides a staged approach for dealing with a holder who has multiple, or repeated, breaches of strict liability, regulatory offences. Under the Scheme, demerit points are incurred for such breaches on payment of a fine under an infringement notice or on a conviction or finding of guilty by a court. After a predetermined number of points have been accumulated within a specified period of time, all the holder’s authorisations, of that particular class, must be suspended or cancelled. As the period within which accumulation of demerit points may be counted against the holder is determined by the legislation, this largely removes the scope of CASA’s discretion. Enforcement Manual, Chapter 10 – Demerit Points Scheme

Last edited by 9.G; 1st Jan 2013 at 16:22.
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Old 17th May 2013, 03:48   #74 (permalink)
 
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Protest too much

Those that advocate routine departures from SOPs are protesting too much. One of our prime directives is to follow SOPs and we should not normally deviate without a safety related reason. Good airmanship will indicate when this will happen and whenever possible, the F/O needs to at least somehow indicate his agreement. Habitual SOP deviation without good reason and without the agreement of the F/O, then Huston, we have a problem!
There may be very minor deviations that are of little consequence. I always wore headset when required by SOP. As F/O, I did not push the captain to do the same. As captain, it soon became obvious to my F/Os that headsets, like other SOPs, were required. I think they liked the idea that SOPs were a routine part of how we operated.
I admit to a couple of habitual infractions, but they were based on airmanship considerations and with F/O agreement. Often I carried more fuel, and on really long taxys, I might have sometimes exceeded the maximum taxy speed for brake temp reasons.
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Old 17th May 2013, 05:31   #75 (permalink)
 
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The problem with guidence of wise philosophy is who is wise is not written anywhere, so it is a self assessment. Who would like to think he is a fool? So everybody starts deviating. A culture needs to be built and implmented to respect SOPs. As they say SOPs are written in blood. SOPs are there in every air line but if the culture is to admire rule breakers and not rule followers then thing are waiting to happen.
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Old 17th May 2013, 11:49   #76 (permalink)
 
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SOPs and Regulations in a nutshell.

Designed and implemented to protect one's self from their own stupidity.

Think about it.
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Old 18th May 2013, 16:50   #77 (permalink)
 
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I've flown for a bunch of airlines. One thing became obvious; SOP's were often at the whim of the C.P. and not always for good rhyme or reason. I was staggered when I first joined the airline business how it was possible to reinvent the wheel, redesign the a/c and how so many airlines chose to re-write the manufacturer's instruction book. I couldn't fathom it; perhaps still can't. I've learnt to live with it, sometime in frustration. I've flown for airlines where they claimed the SOP's to be the approved bible and guarantee of safety. Firstly it was quite obvious that the XAA had not read the whole Ops manual: that was impossible. Secondly the eureka new SOP was changed a couple of weeks later as the line pilot feedback was that it didn't work the way the desk jockeys thought it would. It was often a 'told you so' moment. Thus, I am an SOP sceptic, not in the general sense of SOP's, but in that they are not always the best way to achieve a required task. It is also possible to over SOP a company. I am involved in TQ teaching. The students will join a in-depth SOP airline. They are trained robotic monkeys and guaranteed to survive if they do not deviate. I will debate that. A colleague SFI from another airline is shocked. In his airline , e.g. a G/A ifs flown according to FCTM and the approach chart with good airmanship discretion in coordination with ATC depending on Wx & TFC. In our TQ airline the G/A will be flown to absolute completion, by numbers, with no exemption. This is not the real world. Is it the best SOP? Should it be so? Should discretion be taken away fro the crew? ATC ask if you can abbreviate the procedure and you have to refuse or break SOP's. The same was a classic for years: CAT 2/3 LVO's; maintain 160k to 4nm (ATC) but SOP was F40 at G/S capture. So please, the SOP bible is not always the bible it pretends to be.
What SOP's do is cover your backside in case on an incident. This time "I was only following orders," is a defence. But sometimes it go my goat and irritated the dung out of my airmanship instincts. Times have moved on, peacefully, and the conflicts no longer applies; but sometimes having to teach such stuff just because it's their train set is galling.
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