Hugmonster
As you say, and I agree, all, if not most, UK airlines have adopted CAP371 as the rostering target, rather than the rostering maximum, for aircrew duty. However, it is surely true that the CAA as well as pilots should be making this point rather firmly. I cannot speak for the CAA, but it seems to me that the only UK pilot union, BALPA, has had a duty to act and has so far failed to do so.
It has been rather interesting to read on another thread on this subject that, as soon as the FAA declared its intention to crack down on similar issues in the States, the employers collectively began screaming like the proverbial ‘stuck pig’. I await the outcome of this situation with considerable interest.
Most of us are very familiar with the provisions of CAP371 but many are not familiar with the precise nature of the ‘catch-all’ you describe. It is found within the Air Navigation (No.2) Order 1995, and contravention of these Orders is an offence. It might be useful to here describe the relevant parts of the Order, the nature of the offence committed, and the applicable penalty where in breach.
The responsibilities under this ANO are as follows:
Fatigue of crew — operator’s responsibilities:
Article 63. — ( 2) The operator of an aircraft to which this article applies shall not cause or permit any person to fly therein as a member of its crew if he knows or has reason to believe that the person is suffering from, or, having regard to the circumstances of the flight to be undertaken, is likely to suffer from, such fatigue while he is so flying as may endanger the safety of the aircraft or of its occupants.
Fatigue of crew — responsibilities of crew:
Article 64. — (1) A person shall not act as a member of the crew of an aircraft to which this article applies if he knows or suspects that he is suffering from, or, having regard to the circumstances of the flight to be undertaken, is likely to suffer from, such fatigue as may endanger the safety of the aircraft or of its occupants.
Thus the responsibilities for the pilot and the employer are essentially the same. The offence is described in a schedule of penalties. Part B of the schedule reads as follows:
Breach of Article 63 (2) “Operator’s obligation not to allow flight by crew in dangerous state of fatigue”; and
Breach of Article 64 (1) “Crew’s obligation not to fly in dangerous state of fatigue”.
It is interesting that I cannot find a specific definition within the Order as to what is said to constitute a “dangerous state of fatigue” and this is not only problematic for us as pilots but would present something of a hurdle to a prosecutor proceeding under this legislation.
At Article 111 of the Order, the penalty applicable is described as follows:
Article 111. — (6) If any person contravenes any provision specified in Part B of the said Schedule [the schedule of penalties] he shall be guilty of an offence and liable on summary conviction in Great Britain to a fine not exceeding the statutory maximum or in Northern Ireland to a fine not exceeding £2000 and on conviction on indictment to a fine or imprisonment for a term not exceeding two years or both.
It might be helpful to add that ‘summary conviction’ occurs when the accused pleads guilty from the outset, whereas ‘conviction on indictment’ is where found guilty after plea of not guilty. It might also be said that, given the serious potential in a pilot flying in said “dangerous state of fatigue”, the penalties to be imposed here are quite laughably inadequate. Of course they might be added to with charges of, for example, manslaughter but, in the absence of a fatal accident, an employer is not likely to be terribly concerned with pleading guilty and copping a fine in the order of £2000.
Why have I gone to the trouble above, I hear you say? Well, it is clear that, from a legal view, any assertion by a pilot as to his/her unfitness to fly because of fatigue SHOULD be quite a serious matter for the airline employer in that, if the pilot is then coerced into flying, the operator becomes involved in the commission of the offence. If the pilot is silent, the operator pleads no knowledge as to the presence of fatigue and the pilot stands alone with sole responsibility for his/her actions. But where the pilot speaks up (preferably in writing, I suggest), the employer becomes aware of the fatigue and then shares, repeat ‘shares’, the responsibility should the pilot then fly in that state.
As you quite rightly say, pilots speaking out may well fall from favour, be fired, even blacklisted. But each of these alternatives is, in my mind, infinitely more desirable than one’s own death and/or the manslaughter of many others. Therefore, it does seem that it will be better to speak up and say one is fatigued than to be silent on the issue.
In the absence of action to address this issue by the CAA and the pilot union, it seems that pilots believing themselves fatigued through imposition of CAP371 maximums as daily routine scheduling must speak up and point to their fatigue. Failure to do so means that they are likely to become victims of legislation that largely makes them, and them alone, liable for their continued duty while their (unscrupulous) employers laugh all the way to the bank.
[This message has been edited by tilii (edited 02 July 2001).]