PIC command authority [Archive]

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wnafly

7th Jan 2024, 08:20

KRviator

7th Jan 2024, 09:42

CASR 91.215 (https://classic.austlii.edu.au/au/legis/cth/consol_reg/casr1998333/s91.215.html) might be what you're after.

Lead Balloon

7th Jan 2024, 10:09

You're mixing up a number of different, overlapping, complex issues, wnafly. The long-standing provision that approximates what you're probably after is section 30 of the Civil Aviation Act:30 Weather etc. to be a defence

(1) In any proceedings for an offence against this Act or the regulations, it is a defence if the act or omission charged is established to have been due to extreme weather conditions or other unavoidable cause.

(2) Any defence established under subsection (1) need only be established on the balance of probabilities.(And a hint to reduce the probabilities of you incurring the wrath of the moderators: If you start a thread that is effectively a question - the telltale clue is usually a question mark at the end of a sentence - it should probably be in the forum with 'Questions' in the name.)

wnafly

7th Jan 2024, 10:32

Nope not mixing anything up, simply trying to find where two CARs may have migrated to in the CASRs.

Lead Balloon

7th Jan 2024, 11:17

Can you remember what CAR resulted in “the PIC being allowed to vary regs/procedures/limitations if they deem it necessary in an emergency?”

AQIS Boigu

7th Jan 2024, 12:56

This is why lawyers make bad pilots…

Lookleft

7th Jan 2024, 21:54

Conversely its also why pilots make bad lawyers.

GaryGnu

7th Jan 2024, 22:53

Conversely its also why pilots make bad lawyers.

Couldn't agree more.

So I ask the question of any real lawyers here, how far along a journey into the legal system does a pilot have to go before the defence provisions of s30 of the Act can be used?

I note that the first words of the s30 are:

In any proceedings...

Does s30 effectively work to keep things out of a courtroom or does a pilot who found themselves in a set of unfortunate circumstances have to wait until they step foot inside one to invoke a defence under s30?

I remain to be convinced that this is a better legislative structure than the explicit and specific exceptions written into the relevant regulation (eg CAR 235 Overweight landings, CAO 20.7.1B s11 for landing distance factors)

43Inches

7th Jan 2024, 23:16

Unfortunately there is no answer to that, once you are in an emergency or situation outside the box then inevitably if somebody takes issue to it you will be tested in court. Even if the CASR says you may do x in an emergency and somebody wishes to pursue it and ensure it was indeed legal then it will come back to the act, that will be then an issue of whether somebody in power considers the action viable and warranted. This will be even more convoluted if somebody is injured and it goes to civil claims.

You then have to consider more than just the action itself, for instance how did you end up in that corner that the rules had to be breached.

Ollie Onion

7th Jan 2024, 23:20

Part 91 also includes the following now, which would seem to suggest there is no blanket protection for a PIC from prosecution should you breach a regulation during an emergency.

“Pilot in command to report contraventions relating to emergencies (91.690)

If an emergency occurs and the flying pilot has acted in contravention of a regulation, the pilot or the operator must notify CASA in writing of the contravention, and the circumstances, within 2 business days after the day of the emergency.

The pilot in command is not excused from giving notice by claiming that giving the notice or information might tend to incriminate or expose them to a penalty.

The information in the notice, or any document or thing provided, directly or indirectly, is not admissible in evidence in criminal proceedings.

However, providing false or misleading information or documents is an offence under the Criminal Code (see sections 136.1; 137.1; 137.2)”

43Inches

7th Jan 2024, 23:38

The same thing applies to a mercy flight, you have to justify why you busted a rule in order to conduct that operation. In any case anything in these areas would classify as an immediately notifiable event via the ATSB as well.

All I can say is that if you do have an emergency where you have to break normal rules and as a result somebody takes interest in the event in a legal sense. Get a good lawyer, quoting CASRs or AIP references will not cut it especially if there is a financial claim involved where somebody has been injured or property lost as a result.

Chronic Snoozer

8th Jan 2024, 00:02

donpizmeov

8th Jan 2024, 00:05

Lead Balloon

8th Jan 2024, 00:14

Icarus2001

8th Jan 2024, 00:46

Did he ask a legal question or just ask where to locate a rule?

BuzzBox

8th Jan 2024, 01:03

I'm perpetually amused by pilots who ask legal questions, the answers to which are - despite the questioner's ignorance naivete - quite complex, then arc up at attempts by qualified experts to help dissect and explain the complexity. I'm also perpetually thankful for my blind luck in having survived decades of incompetent flying and incompetent (but lucrative) legal practise.

Might I suggest that if your reply to a reasonable question hadn't been patronising and sarcastic, the person who posed the question wouldn't have felt the need to "arc up"?

Lead Balloon

8th Jan 2024, 01:35

43Inches

8th Jan 2024, 01:42

You mentioned landing overweight. I am pretty sure most company Ops manuals will have direction on this, and other non normal situations. These manuals are approved by the authorities, so just stick with that.

This worrying about legal action when doing pilot sh@t is a very Australian thing. Not sure it's a very healthy thing.

You obviously are not aware how many air crew in foreign nations have spent jail time lost licences or had to pay out huge damages. Australis is probably one of the most lenient nations.

donpizmeov

8th Jan 2024, 01:47

My apologies, everyone. I look forward to learning something new when someone locates the rule about the PIC being allowed to vary regs/procedures/limitations if they deem it necessary in an emergency.

My previous company had a paragraph in its OMA and FCOMs that stated something to the effect that the PIC was allowed to do whatever he/she thought needed to be done in the event of an emergency, and should not feel constrained by either document. So if I had an uncontrollable fire/bomb on board etc, I wasn't constrained by speed limits, landing weights, stabilisation criteria etc but could exercise good judgement and do pilot stuff. Training of this was even conducted during recurrent training. Sometimes following all the rules and procedures isn't in the best interest of safety. But knowing and understanding all the rules and procedures gives you an idea of how far you can go without compromising safety.

Is this what you mean, or am I barking up the wrong tree again?

donpizmeov

8th Jan 2024, 01:49

You obviously are not aware how many air crew in foreign nations have spent jail time lost licences or had to pay out huge damages. Australis is probably one of the most lenient nations.

22yrs flying for an airline outside of Australia. So have a bit of a clue I would hope. Only 20 of those years as PIC though.

Lead Balloon

8th Jan 2024, 02:03

My previous company had a paragraph in its OMA and FCOMs that stated something to the effect that the PIC was allowed to do whatever he/she thought needed to be done in the event of an emergency, and should not feel constrained by either document. So if I had an uncontrollable fire/bomb on board etc, I wasn't constrained by speed limits, landing weights, stabilisation criteria etc but could exercise good judgement and do pilot stuff. Training of this was even conducted during recurrent training. Sometimes following all the rules and procedures isn't in the best interest of safety. But knowing and understanding all the rules and procedures gives you an idea of how far you can go without compromising safety.

Is this what you mean, or am I barking up the wrong tree again?A paragraph in an operator's OMA or FCOM (stating the obvious) is not a CAR or a CASR. The OP asked for the CASR, and implied there was a CAR equivalent, that allowed the PIC to vary regs/procedures/limitations if they deem it necessary in an emergency.

Having a potentially available defence to a prosecution for breach of a rule is a bit different - actually, vastly different - to having authority to 'vary regs' when we 'deem it necessary in an emergency'. But I'm mindful that I'm here drifting into legal issues rather than the simple task of location of the requested regulation.

Icarus2001

8th Jan 2024, 03:28

Here is the US version for reference...

https://www.ecfr.gov/current/title-14/chapter-I/subchapter-F/part-91/subpart-A/section-91.3

A paragraph in an operator's OMA or FCOM (stating the obvious) is not a CAR or a CASR. My company OM, like most I would assume, has a similar paragraph. It goes so far as to say, "believing to be the correct action in the event..." So in following my company manual "accepted" by CASA, do I gain some protection?

Whenever Australian pilots talk about being caned by CASA for a transgression I am reminded of the inability of CASA to find anyone to cane when a Qantas aircraft took off from Hobart without having the runway lights turned on. Then followed up by a Jetstar aircraft at the same airport a few years later.

donpizmeov

8th Jan 2024, 03:35

A paragraph in an operator's OMA or FCOM (stating the obvious) is not a CAR or a CASR. The OP asked for the CASR, and implied there was a CAR equivalent, that allowed the PIC to vary regs/procedures/limitations if they deem it necessary in an emergency.

Having a potentially available defence to a prosecution for breach of a rule is a bit different - actually, vastly different - to having authority to 'vary regs' when we 'deem it necessary in an emergency'. But I'm mindful that I'm here drifting into legal issues rather than the simple task of location of the requested regulation.

So if you follow company guidance as published in an approved Ops manual, which is approved by the regulatory authority, you aren't protected? Is this what you are suggesting?

The QF and VB fuel policies don't entirely conform with regulations. But those companies have applied for and received exemption on the basis that they have a policy that provides equivalent safety. Crews operate in accordance with their respective OPS manuals, and not the MOS or CAR. For example. It also means that those company's can maximize commercial load,. Something the MOS doesn't really do.
Anyhoo, this is very far away from what the original poster asked. Sorry for the thread drift.

Lead Balloon

8th Jan 2024, 05:34

Again, the questions merely expose the underlying complexities. An exemption from compliance with a regulation is not the same as the approval of an Ops Manual paragraph. The Renmark tragedy illustrates that CASA sometimes approves Ops Manuals with dangerous procedures in them. That’s why CASA is sometimes a defendant in negligence claims arising from aviation accidents.

I’ll try to explain it like this. Captain Sullenberger and his crew suffered an emergency and ditched into a river (probably above MLW). He did what he judged necessary in the circumstances. No lives were lost.

Nonetheless, Captain Sullenberger was ‘put through the ringer’ by, among other agencies, the NTSB. The NSTB didn’t shrug and say, oh well, Sully had authority to vary the rules as he deemed necessary so we’ll just move on.

The few defences built into the Australian rules – which no PIC has the authority to ‘vary’ when the PIC ‘deems necessary in an emergency’ – are a tiny, withered fig-leaf over the PIC’s exposures that have nothing to do with prosecution action. If I’m involved in accident – touch wood – the least of my worries would be prosecution action.

But I'm again mindful that I'm drifting into legal issues rather than the simple task of location of the requested regulation.

Lookleft

8th Jan 2024, 06:05

I’ll try to explain it like this. Captain Sullenberger and his crew suffered an emergency and ditched into a river (probably above MLW).

Your explanations of legal matters is beyond my abilities and knowledge level to do anything but accept them as coming from a knowledgeable person. When however you stray into assumptions about operational matters can I respectfully suggest that you do not include them in your explanations. Specifically the bit in the quote, you don't know so don't include it. It is quite probable that the aircraft was not above MLW as it would be totally dependent on his ZFW and the FOB when he struck the birds. All this would require knowledge of his payload and sector length to determine what his EFBO and the FOB at dispatch was likely to be.

Lead Balloon

8th Jan 2024, 06:17

Thanks for that, Lookleft. My use of the word "probably" was evidently not sufficient to make clear to you that I was not making a categorical assertion and the reference to MLW was evidently lost on you as an ironic link to the OP's reference to CAR 235 and landing overweight. Good to see I'm still living rent free in your head, though. BTW: You do know the aircraft's fuel state on ditching is in the NTSB's report, don't you?

Chronic Snoozer

8th Jan 2024, 07:17

Only a lawyer could point out that a pilot "landed" above MLW (possibly, allegedly, or ironically) in case of a power-off ditching. Should have been fined for not having floats too. Was it the NTSB lawyers that put Sully 'through the wringer' or the NTSB Ops guys?

Lead Balloon

8th Jan 2024, 08:02

OMG. Yet another one that can't see the ironic link to the OP.

Yes: The only thing that NTSB was concerned about - at the NSTB lawyers' urging - was that Sully's airplane was above MLW when it ditched. That's why he was put through the ringer.

(I think I'm going to have to start using coloured font, as they do on US fora...)

Lookleft

8th Jan 2024, 08:44

Good to see I'm still living rent free in your head, though. BTW: You do know the aircraft's fuel state on ditching is in the NTSB's report, don't you?

No but you are making yourself look stupid, again, on a pilots forum. You might want to read that report again, there is very little discussion about the fuel onboard. There is a little bit about what the estimated landing weight was which you might find interesting. You might want to revisit your ironic comment about the aircraft probably being above the MLW.

Lead Balloon

8th Jan 2024, 09:11

I have read the report and I know it says, at page 10: "“the airplane’s weight when it was ditched on the Hudson River was estimated to be about 150,000 pounds”. My amateur, non-commercial pilot research indicates that the maximum landing weight of a ‘vanilla’ A320-214 is 142,198 pounds. (Sarcasm alert!) By my maths 150,000 pounds is greater – quite a bit greater – than 142,198 pounds.

Could you give me the benefit of your commercial pilot expertise and express an opinion as to the accuracy of the following statement: “Captain Sullenberger and his crew suffered an emergency and ditched into a river (probably above MLW).”

(For the benefit of the OP: The bracketed words included in my post were an evidently failed attempt at irony.)

(In case you haven’t watched it, Lookleft, I’d commend the Young Sheldon series to you. There’s an episode in which psychologists submit Sheldon and his twin sister to a bunch of tests. The tests reveal the genius Sheldon’s weak spots – characterised by his maternal grandmother as Sheldon’s ‘kryptonite’. He’s entirely oblivious to sarcasm and irony.

Your weak spots include whatever it is that makes you obsessed with reminding everyone that I’m not a commercial pilot and proving how much you know, to the extent that you’re blinded to the points I’m making.)

Lookleft

8th Jan 2024, 09:51

BTW: You do know the aircraft's fuel state on ditching is in the NTSB's report, don't you?

Well clearly you don't either if you are using page 10 of the report as your reference. In reference to your so called irony in the brackets, the word probably is redundant. If you, as an upper middle aged male, are watching Young Sheldon for life advice I would suggest that you go and look for one.

itsnotthatbloodyhard

8th Jan 2024, 10:15

Here is the US version for reference...

Whenever Australian pilots talk about being caned by CASA for a transgression I am reminded of the inability of CASA to find anyone to cane when a Qantas aircraft took off from Hobart without having the runway lights turned on. Then followed up by a Jetstar aircraft at the same airport a few years later.

Whenever Australian pilots talk about this alleged transgression, I am reminded of the inability of certain individuals to be able to distinguish ‘Hobart’ from ‘Launceston’, while still assuming they have any sort of credibility to be able to comment on said alleged transgression…

donpizmeov

8th Jan 2024, 13:42

Whenever Australian pilots talk about this alleged transgression, I am reminded of the inability of certain individuals to be able to distinguish ‘Hobart’ from ‘Launceston’, while still assuming they have any sort of credibility to be able to comment on said alleged transgression…
It is a tiny island ITBH, with not many different surnames. I am sure we can all understand why they all look alike.

Icarus2001

8th Jan 2024, 13:46

Quite right. Launceston not Hobart. The location really is the most important part after all.

43Inches

8th Jan 2024, 21:06

In any case the Hudson river incident highlights the point. Sully did what he thought was best, the outcome was optimal with no loss of life or even serious injury. He was then put through the ringer in court to prove what he did was justified, even to the point they tried to hang him by saying a split second decision could have been made to fly over built up areas and try to make a runway. Luckily reality was on his side and it was proven very unlikely that aiming for a runway would have been a good choice. Then there is Tuninter 1153, the wrong fuel sensor was installed in the aircraft, it ran out of fuel mid Mediterranean, the crew became confused about why both engines flamed out, even though fuel was indicated, were preoccupied with inflight restarts and missed an opportunity to just glide to two airports just in range at the time of failure. The ditching itself was considered textbook but being an ATR it still broke up and pasengers died. The PIC was charged with manslaughter and sentenced to 10 years prison, even the FO was charged and given jail time.

Clinton McKenzie

8th Jan 2024, 21:19

I'm glad at least one person gets the actual point of my example, 43. (It was the NTSB, not a court, that put Sully through the ringer. There's no right to silence in front of the NTSB! And no amount of defences to a prosecution protect us from civil liability or administrative action.)

compressor stall

8th Jan 2024, 21:45

I'm pretty sure their A320 FCOM had an AFM procedure for overweight landings for any number of reasons, including emergency, for which the effective loss of both donks would qualify.

I stand corrected if not, but I do not recall the over MLW being a factor in the report, but I also don't have an insight into the NTSB actions/thoughts. Would appreciate a link LB/CM if the case.

MickG0105

8th Jan 2024, 21:54

In any case the Hudson river incident highlights the point. Sully did what he thought was best, the outcome was optimal with no loss of life or even serious injury. He was then put through the ringer in court to prove what he did was justified, even to the point they tried to hang him by saying a split second decision could have been made to fly over built up areas and try to make a runway. ...

I'm glad at least one person gets the actual point of my example, 43. (It was the NTSB, not a court, that put Sully through the ringer. There's no right to silence in front of the NTSB! And no amount of defences to a prosecution protect us from civil liability or administrative action.)

You fellows appear to be relying on the dramatisation of the investigation that appeared in the movie. Perhaps you should read the NTSB report.

https://cimg4.ibsrv.net/gimg/pprune.org-vbulletin/798x1036/screenshot_20240109_084247_adobe_acrobat_38eaff51869b7eb0164 b943499480e78504540fd.jpg
https://cimg9.ibsrv.net/gimg/pprune.org-vbulletin/926x896/screenshot_20240109_084549_adobe_acrobat_75c697b08a6b236eae4 f54301ee4682882d7b949.jpg

When it comes to a shoot-out between Hollywood and a primary source document, I tend to lean towards the latter.

43Inches

8th Jan 2024, 22:08

I think taking an excerpt from a report that was produced after everything was nutted out is misleading to say the least. The NTSB was highly critical of Sullys' decision to land on the Hudson and the initial simulator exercises lent weight to their argument after 7 of 13 attempts landed successfully at La Guardia, it was only after it was argued that there needed to be a 'startle' delay added to the simulations that it was proved that any attempt to return to land was not the right course. Now whilst the NTSB may have eventually said the simulations were unrealistic, who originally conducted the simulations to prove it could be done? They were also critical of why the double engine failure checklist was not completed.

Sully still had to defend himself before the NTSB that his actions were correct, there was no "oh you were PIC so everything you did was appropriate given it was an emergency", so no law covered him without test.

BuzzBox

8th Jan 2024, 22:09

compressor stall

8th Jan 2024, 22:41

OMG Clinton. Did you just out yourself as "Lead Balloon"? :ooh:
It wasn't already obvious? :)

43Inches As for Tuninter 1153, it's broadly but not as clear cut as you make out. Sure, the PIC did not follow SOPs well, both in dealing with the dual EF and the ditching. But importantly that part of the world, despite its civilised culture and fine wines, has a legal propensity to pursue fatal (transportation) accidents to attribute blame. Look at the chasing of Concorde prosecution to both sides of the Atlantic, and Frank Williams etc being prosecuted by the Italian authorities in the wake of Senna's F1 crash to name two that spring to mind..

Clinton McKenzie

8th Jan 2024, 22:45

I thought everyone knew that I am (one of) the Lead Balloons!

Mick: As 43 has pointed out, the report was made - not surprisingly - after Sully was put through the ringer. The NTSB hearing videos are available on Youtube.

It's a bit like someone citing a legislated defence to an offence as some panacea. By definition, you raise a defence when you are being prosecuted. You may well establish the defence to the requisite standard, but that doesn't mean the process of exonerating yourself wasn't stressful and costly.

compressor stall: The fact that the aircraft was probably above MLW when it ditched was not a matter of concern to the NTSB. I don't know how more clearly to say it. Try reading the thread from the start and you might understand why it was mentioned.

43Inches

8th Jan 2024, 22:50

It wasn't already obvious? :)

43Inches As for Tuninter 1153, it's broadly but not as clear cut as you make out. Sure, the PIC did not follow SOPs well, both in dealing with the dual EF and the ditching. But importantly that part of the world, despite its civilised culture and fine wines, has a legal propensity to pursue fatal (transportation) accidents to attribute blame. Look at the chasing of Concorde prosecution to both sides of the Atlantic, and Frank Williams etc being prosecuted by the Italian authorities in the wake of Senna's F1 crash to name two that spring to mind..

Oh that was in response to some assertions that Australians are the only ones that worry about what can happen in case of emergency decisions. And yes many nations you will most likely end up in actual court if somebody is injured or dies in a transport accident, especially, but not exclusively, if the national transport investigator finds crew error as a causation. Australia you need only worry about negligence in most instances, but you will still most likely at least be interviewed by the ATSB if you broke a rule during an emergency, and even if you didn't. Point is if the ATSB investigates an emergency and its found in the course of the investigation that you contributed to it, and your decision was not sound, then many things can happen afterwards where you will need solid legal advice.

Also the Coroners interest may be peaked beyond the ATSB report as what happened in Tasmania recently, leading to additional investigations.

And no, I'm not part of the Lead Balloon consciousness.

compressor stall

8th Jan 2024, 23:10

CM/LB
I get that MLW was not a matter of concern to the NTSB. On that we agree. I understand that you were mentioning in in response to the OP query about overweight landing.

My point is that it was a redundant example to use as landing (or ditching) at that weight is permitted under the AFM anyway, so that part would not be in contravention of our 91.095 (if it was to happen here of course, not in FAA land).

Icarus2001

8th Jan 2024, 23:30

This reminds me of, "people are not wearing enough hats".

Lookleft

8th Jan 2024, 23:50

Point is if the ATSB investigates an emergency and its found in the course of the investigation that you contributed to it, and your decision was not sound, then many things can happen afterwards where you will need solid legal advice.

You cannot be prosecuted based on anything in an ATSB report. An ATSB report cannot be used as evidence in a court. A Coroners Court is different as it is a Court of Law.

MickG0105

8th Jan 2024, 23:54

I think taking an excerpt from a report that was produced after everything was nutted out is misleading to say the least.
Well, let's go to the record of the "nutting out" process. It's all documented in detail here https://data.ntsb.gov/Docket/?NTSBNumber=DCA09MA026

The NTSB was highly critical of Sullys' decision to land on the Hudson and the initial simulator exercises lent weight to their argument after 7 of 13 attempts landed successfully at La Guardia, it was only after it was argued that there needed to be a 'startle' delay added to the simulations that it was proved that any attempt to return to land was not the right course.
Were they? Or was that just how the movie made it look. If they were "highly critical", I'm sure you'll be able to find it in the panoply of primary documents.

... Mick: As 43 has pointed out, the report was made - not surprisingly - after Sully was put through the ringer. The NTSB hearing videos are available on Youtube.
Yes, the video of the hearings are available, as are the transcripts. Have you ever looked at either? If so, perhaps you could point out the parts where "Sully was put through the ringer".

The most aggressive questioning of Sully came from the Flight Attendants Union rep, Ms Kolander, when she pressed him on the lack of clarity that the cabin crew had about the ditching (most thought they were making a forced landing on Terra Firma), and on the capacity of the life rafts.

On topic, the FAA rep, Mr Harris, specifically raised the matter of Captain's Authority, noting that,

the flight operations manual starts with some discussion of it's impossible to write a procedure for every type of emergency, you're expected to use your judgment based upon your training and experience.

Clinton McKenzie

9th Jan 2024, 00:30

You cannot be prosecuted based on anything in an ATSB report. An ATSB report cannot be used as evidence in a court. A Coroners Court is different as it is a Court of Law.Thanks for the belly laugh, Lookleft!

Here's an idea: How's about one of you experts answer the OP's question, because this little (stupid, amateur) black duck doesn't know what the answer is.

Cite the CASR that authorises the PIC to "vary regs/procedures/limitations if they deem it necessary in an emergency".

I always thought that a statutory defence to prosecution is what's written on the box. The box and what's inside it don't say anything about authorising anyone to vary anything. I always thought a statutory defence to prosecution has no relevance to eg. administrative actions like licence suspension or cancellation, civil liability for e.g. negligence, ATSB inquiries, coronial inquiries, parliamentary inquiries or anything other than prosecution for the offence to which the defence is available. But I'm always happy to learn something new.

BuzzBox

9th Jan 2024, 00:37

Mr Harris, specifically raised the matter of Captain's Authority, noting that, "the flight operations manual starts with some discussion of it's impossible to write a procedure for every type of emergency, you're expected to use your judgment based upon your training and experience."

Exactly, Mick. That's always been the case, no matter how "complex" some people like to make the argument.

Clinton McKenzie

9th Jan 2024, 00:55

The OP's question is about actual regulations, actual procedures and actual limitations. Statements of the bleeding obvious - that it is impossible to write a procedure for every type of emergency - don't answer the OP's question.

BuzzBox

9th Jan 2024, 01:22

Perhaps not, but a load of bombastic legalese hasn't done much to answer the question either.

Lookleft

9th Jan 2024, 01:53

Thanks for the belly laugh, Lookleft!

Finished watched Young Sheldon have we-who are you again? Talk about living rent free. LB is not living in my head rent free he has set up permanent residence in yours! How pathetic for anyone to be on a BB as two different people. LMFAO when you outed yourself. Thats the problem with being two people, you never know who is going to turn up on the day.

Bleve

9th Jan 2024, 02:14

I know it's boring to refer to actual authoritive source documents, but here we go. In 2021, CASA published a document called 'Mapping of Civil Aviation Regulations to CASR Parts 91, 119 and 121 - Australian air transport operations - larger aeroplanes'. This document lists each of the old CARs and points to where equivalent provisions are located in the new CASRs. The document can be downloaded from here:

https://www.casa.gov.au/mapping-civil-aviation-regulations-casr-parts-91-119-and-121-australian-air-transport-operations-larger-aeroplanes

I think this will answer OPs question.

As to the subsequent discussion on the legalities of the PICs command authority, the following should be noted. CAR 145 stated:'Emergency authority. In conforming with the rules contained in the provisions of Division 2 of this Part and in the provisions of Parts 12 and 13, the pilot in command of an aircraft shall pay due regard to all dangers of navigation and collision and to any special circumstances which may render a departure from those rules necessary in order to avoid immediate danger.' However the mapping document referred to above states (wrt to CAR 145):'This provision will be repealed and has not been replaced. Similar alleviations are achieved by rules prescribed elsewhere in Australian legislation (the Civil Aviation Act 1988 and the Criminal Code Act 1995).'
Hence there are NO equivalent provisions in the new CASRs to the previous CAR 145. As stated by CASA, we are now reliant on other Legislation for a defence if we are charged with an offence against the CASRs.

These are the relevant sections of the Acts:

Civil Aviation Act 1988
30 Weather etc. to be a defence(1) In any proceedings for an offence against this Act or the regulations, it is a defence if the act or omission charged is established to have been due to extreme weather conditions or other unavoidable cause.
(2) Any defence established under subsection (1) need only be established on the balance of probabilities.

Criminal Code Act 1995
10.3 Sudden or extraordinary emergency(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.

Clinton McKenzie

9th Jan 2024, 04:27

There's at least one important addition to what Bleve posted: The PIC (in this case) bears the evidential burden in relation to (a), (b) and (c) in subsection 10.3(2) of the Criminal Code.

compressor stall

9th Jan 2024, 05:27

Chronic Snoozer

9th Jan 2024, 05:29

Thank you Bleve for posting that. The OP also asked about CAR 235 which stated amongst other things:

(6) The pilot in command of an aircraft, must not land the aircraft if its gross weight exceeds its maximum landing weight……
and
(13) It is a defence to a prosecution under subregulation (6) if the landing was made in an emergency.
Note A defendant bears an evidential burden in relation to the matter in subregulation (13) (see subsection 13.3 (3) of the Criminal Code).

From Bleve’s link, the resolution to the removal of CAR 235 is that it was replaced by CASR 121.420 with further reference to “Other provisions”

91.095 Compliance with flight manual etc.
121.055 Compliance with flight manual
121.440 Procedures for loading aeroplane etc.
121.445 Pilot in command must have information about aeroplane’s weight and balance
121.450 Computerised weight and balance systems not fitted to aeroplanes
121.455 Weight and balance documents

None of which appear to contain wording similar to the old CAR 235 (13) with respect to ‘emergency’.

Clinton McKenzie

9th Jan 2024, 05:48

Clinton, for the young guys and gals floating about the outback flying twins reading this thread it would make this thread come to a worthwhile conclusion if you explain “evidential burden” in lay terms with an example - your efforts should I hope be better than mine.

I’d just point them here. https://www.ag.gov.au/crime/publications/commonwealth-criminal-code-guide-practitioners-draft/part-26-proof-criminal-responsibility/division-13/133-evidential-burden-proof-defence#:~:text=For%20example%2C%20the%20defendant%20is,freq uently%20employed%20in%20federal%20legislation.&text=In%20general%2C%20excuses%20and%20justifications,of%20e xceptions%2C%20exemptions%20and%20qualifications.That's a very good start, cs, because the stuff quoted at the link is the provision in the Criminal Code that imposes the "evidential burden" re those matters in the second provision quoted by bleve, and defines the term.

I'll come up with some practical examples to tease out how these things work. Standby.

Icarus2001

9th Jan 2024, 06:01

(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.

As judged by a bunch of lawyers, a bunch of pilots or a judge?

Bleve

9th Jan 2024, 06:38

As judged by a bunch of lawyers, a bunch of pilots or a judge?

Given that any prosecution would most likely be initiated by CASA, it would be CASA that has first bite of the 'reasonable response' cherry. If they decide that your actions were unreasonable, then I imagine they would then have to convince the DPP. If they also agree, then time to 'LAWRUP'.

Bleve

9th Jan 2024, 07:05

Finding out relevant information in the new CASRs about a single topic is like completing a 1000 piece jigsaw with the pieces scattered around the backyard. Anyway these are some relevant pieces of the Overweight Landing jigsaw that I have found. Note that my list is most likely not exhaustive and that I'm looking at it from an Airbus pilot perspective.

CASR98 regulations that govern landings include:
• 91.095 & 121.055. Require the PIC (91.095) and the operator (121.055) to comply with the AFM.
• 91.800 & 121.420. Require the PIC (91.800 & 121.420) and the operator (121.420) to comply with the relevant MOS.
• Part 91 MOS 25.02. State that the PIC must use a specified method to calculate landing performance (Airbus = Flysmart).
• Part 121 MOS 9.13. Specify the inflight landing distance requirements (including a 15% factor).

The combined effect of those regulations is that since:
• the Airbus AFM (ie the FCOM) includes an Overweight Landing procedure, and
• we can calculate an inflight landing distance at weights in excess of the max landing weight, no ‘special’ circumstances (ie an emergency) are required to land overweight.

Clinton McKenzie

9th Jan 2024, 07:07

MickG0105 said: Have you ever looked at either? If so, perhaps you could point out the parts [of the NSTB hearings] where "Sully was put through the ringer".

The most aggressive questioning of Sully came from the Flight Attendants Union rep, Ms Kolander, when she pressed him on the lack of clarity that the cabin crew had about the ditching (most thought they were making a forced landing on Terra Firma), and on the capacity of the life rafts.Yes I have. You only need to look at the first few pages of the formal transcript to understand what Capt S was required to do and the context.

This was a public hearing of the NTSB’s “Office Of Administrative Law Judges”. Capt S was in front of a Board of Inquiry and was required to answer questions asked by an NSTB safety investigator, a bloke who I think was from the French equivalent of the NTSB, Ms Kolander from the Association of Flight Attendants (as you’ve noted), a representative of the FAA, a representative of the US Airline Pilots Association, and three members of the Board of Inquiry.

You and I might disagree as to the proper metaphor for the process, but it certainly did not comprise Capt S merely explaining, in a quiet chat with an NTSB investigator, what he deemed necessary to be done in the emergency, with no further comment, and the NTSB accepting that and moving on. Capt S was, in effect, cross-examined publicly about his actions – sometimes gently in his interests and sometimes more aggressively – by a number of people outside the NTSB as well as NTSB itself. (I'm confident that no PIC of an Australian RPT aircraft would expect to be formally and publicly questioned by a representative of the Flight Attendant's Association in the wake of an incident, as part of an ATSB investigation. But I'm happy to stand corrected.)

Sure: Capt S lives happily ever after. But that’s only after he was put under intense public, NTSB-mandated scrutiny involving non-NTSB people asking him questions.

My perhaps poorly made point is that there is no magic law to the effect that a PIC’s judgments in an emergency will never be the subject of any critical scrutiny and never result in negative consequences.

Chronic Snoozer

9th Jan 2024, 07:09

OMG. Yet another one that can't see the ironic link to the OP.I thought the comment was flippant rather than ironic. Instead of pontificating, you could have just posted the answers to the OP’s questions and saved two pages on this thread. I mean, you’ve known all along what he’s asking about, haven’t you?That's why he was put through the ringer.It’s “wringer”. Quasimodo was a ringer.
(I think I'm going to have to start using coloured font, as they do on US fora...)Perhaps you should, and use a CRAYON font. But make sure Clinton and Lead use different colours please.

Clinton McKenzie

9th Jan 2024, 07:40

Icarus: You overlooked the bit about the PIC bearing the evidential burden in relation to all 3 matters in order that 13.2(1) applies. One of the other matters is that committing the offence was "the only reasonable way to deal with the emergency".

The PIC can, for example show that there was a sudden or extraordinary emergency - note that an 'ordinary' emergency isn't enough - and also show that the PIC's conduct was a "reasonable response" to that emergency, but if there was another "reasonable way" to deal with the emergency than engaging in the conduct that constitutes the offence, section 13.2(1) does not apply.

Maybe the other provision Bleve quoted at #53 (and was quoted by one of the Balloons all the way back at post #3) is more 'PIC friendly'?

This stuff is unavoidably complicated, folks. Understanding it means eating an elephant. Nibbling at the edges doesn't work.

Clinton McKenzie

9th Jan 2024, 07:43

I thought the comment was flippant rather than ironic. Instead of pontificating, you could have just posted the answers to the OP’s questions and saved two pages on this thread. I mean, you’ve known all along what he’s asking about, haven’t you?It’s “wringer”. Quasimodo was a ringer.
Perhaps you should, and use a CRAYON font. But make sure Clinton and Lead use different colours please.The correct answer would take far more space than the two pages of mostly irrelevant waffle on this thread, but would be unwelcome because it's complicated and confronting.

Clinton McKenzie

9th Jan 2024, 21:27

As an act of purest optimism, I’m going to use a very simple, specific scenario in an attempt to show why the answer to the OP’s question is very complex and scenario-specific. And, in anticipation of the indignant fulmination about lawyers that will ensue, I note that my submission to the Senate GA inquiry (it’s a public document) said, among other things:The aviation regulatory reform program is the single biggest and most expensive hoax ever committed on the Australian aviation sector. The complex, convoluted mess that is the package of aviation safety regulatory legislation in 2020 achieves few if any of the stated aims of the program …I didn’t make the mess. I’m a trenchant critic of it.

The following was done in a hurry and is just a ‘big hands small maps’ explanation. It will have errors and omissions. Sue me.

Compliance with air traffic control clearances and air traffic control instructions

When I learnt to fly in the mid-80s, CAR 100 was drummed into me. (All of my training was in, or from and back to, YSCB.) CAR 100 said:100. (1) An aircraft shall comply with air traffic control instructions.

(2) Subject to subregulation (3), and unless otherwise authorised by the appropriate Air Traffic Control Unit or by a notification in Aeronautical Information Publications or in NOTAMS, an aircraft shall not:

(a) enter, operate in, or leave a control area;

(b) operate outside a control area as a result of a diversion out of that control area in accordance with Air Traffic Control instructions; or

(c) enter, operate in, or leave a control zone or operate at a controlled aerodrome; except in accordance with an air traffic control clearance in respect of the aircraft.

(3) If an emergency arises that, in the interests of safety, necessitates a deviation from the requirements of an Air Traffic Control clearance or Air Traffic Control instructions, the pilot in command may make such deviation as is necessary but shall forthwith inform Air Traffic Control of the deviation.Note well subreg (3). It is precisely the kind of provision which a pilot would reasonably paraphrase as giving the PIC authority to “vary regs/procedures/limitations if they deem it necessary in an emergency”. That’s what it says, in not so many words. “[T]the pilot may…”.

I won’t go into who carried what onuses and burdens of proof under CAR 100 if the **** hit the fan after a deviation, as that’s all now water under the bridge. (My apologies for the serial mixed metaphors.) Ditto the question as to resolution of what was “necessary”.

I do have to highlight one quirk in CAR 100, though, as the quirk is relevant to the explanation of the ‘CASR equivalent’: Among the things CAR 100 prohibited was – not surprisingly - entry into controlled airspace without a clearance. However, the exception in subreg (3) in its terms appeared to apply only to clearances or instructions already given. Entering controlled airspace without a clearance is not a deviation from a clearance or instruction. Rather, it’s not having one in first place.

Where did CAR 100 ‘go’?

The substance of CAR 100 went to three places. One of the more obvious of those places is CASR 91.257:91.257 Air traffic control clearances and instructions

(1) The pilot in command of an aircraft for a flight contravenes this subregulation if, during the flight:

(a) air traffic control gives the pilot in command an air traffic control clearance or air traffic control instructions; and

(b) the pilot in command does not comply with the clearance or instructions.

(2) Subregulation (1) does not apply if:

(a) it is not practicable to seek authorisation for the non compliance before it occurs; and

(b) the non compliance is necessary for the safety of the aircraft or the persons on the aircraft; and

(c) the pilot in command informs air traffic control about the non compliance as soon as practicable after the pilot in command is unable to comply with the clearance or instructions.

(3) A person commits an offence of strict liability if the person contravenes subregulation (1).

Penalty: 50 penalty units.

Note: A defendant bears an evidential burden in relation to the matters in subregulation (2): see subsection 13.3(3) of the Criminal Code.The first and obvious thing about that regulation, compared to CAR 100, is that the exception in subreg (2) is not expressed or structured as a discretion conferred on the PIC. Recall that CAR 100 said: “If an emergency arises that, in the interests of safety, necessitates a deviation …, the pilot in command may make such deviation as is necessary..”. Subreg (2) is instead expressed and structured as a defence. The PIC has committed an offence unless the PIC – who bears the evidential burden – makes out the defence. (More on the joys of how the evidential burden works, later.)

The other point to note is that there is no mention of “entry” into controlled airspace in CASR 91.257(1). On the face of CASR 91.257 alone, and in contrast to CAR 100, there is no prohibition on entry into controlled airspace without a clearance.

So CASR 91.257(1) prohibits deviations from ATC clearances or instructions already given. The exception in CASR 91.257(2) – a defence for which the PIC bears the evidential burden – applies only to those deviations.

Where did the prohibition on entry into controlled airspace without a clearance go, and where is the exception if I decide I need to do it in an emergency?

The prohibition on entry into controlled airspace without a clearance is now split over two places, and there are two potential exceptions, each of which exceptions has its own, different, criteria and neither of which exceptions is in the same terms as the exception in CASR 91.257(2).

The Part 91 MOS says this at section 11.15:11.15 Control zones and control areas — entry into Class A, B, C, D or E airspace

(1) Subject to subsections (2) and (3), a pilot in command of an aircraft must not enter a control zone or a control area that is Class A, B, C, D or E airspace without ATC clearance.

(2) Despite subsection (1), a VFR flight does not require clearance to enter Class E airspace.

(3) Subsection (1) does not apply when an ATC service is not in operation for the control zone or the control area.There is another MOS provision which prohibits e.g. taking off or landing at a controlled aerodrome without a clearance.

(As an aside, I don’t see how a prohibition on doing something counts as a ‘standard’. Nor do I understand how the prohibition from deviating from a clearance remains in CASR but the prohibition on entry in controlled airspace without a clearance gets a guernsey in a MOS. It’s incoherent to me. But don’t get me started…)

There are no ‘consequence’ provisions in a MOS because a MOS is (or is supposed to be) just a bunch of ‘standards’. The primary ‘consequence’ provision for the Part 91 MOS is back up in CASR, at 91.255:91.255 Air traffic services—prescribed requirements

(1) The Part 91 Manual of Standards may prescribe requirements in relation to the use by an aircraft of [blah blah blah…]

(2) The pilot in command of an aircraft for a flight contravenes this subregulation if a requirement mentioned in subregulation (1) is not met for the flight.

(3) A person commits an offence of strict liability if the person contravenes subregulation (2).

Penalty: 50 penalty units.So, for example, entry into controlled airspace without a clearance or landing at a controlled aerodrome without a clearance is a bog standard strict liability offence under CASR 91.255(3), with no ‘built in’ exceptions for emergencies. Those exceptions are in section 30 the CAA Act and s 13 of the Criminal Code. Each of those has its own (and different) criteria and onuses/burdens.

Let’s take an example, from a common scenario (for me) that develops into an emergency (mercifully not a common scenario for me).

I’m orbiting a little bit west of Black Mountain tower, outside Class C airspace at 3,500’, having contacted Canberra tower and asked for an inbound clearance to YSCB. Canberra tower acknowledges my request, gives me squawk code and instructs me to remain outside Class C airspace. I acknowledge and comply with that instruction.

Smoke then starts billowing from behind and under my instrument panel. My passengers start panicking. I immediately turn my aircraft to point straight at the intersection of the YSCB runways. which I can see from my current location and are in gliding distance if my engine fails.

Three seconds later I’m in the YSCB Class C without a clearance.

Strict liability offence under CASR 91.255(3). Potential defences: section 30 of the CA Act and section 13 of the Criminal Code.

I then declare a mayday and YSCB TWR gives me a clearance to join right downwind for RWY 30. I acknowledge that clearance.

Things get worse. Turns out that the smoke is coming from my COMM RxTx. It fails. I decide to turn towards and land at the closest runway, which is 12.

Non-compliance with the acknowledged clearance: strict liability offence under CASR 91.257(1). Potential defence: CASR 91.257(2).

I then land on RWY 12 without a clearance. (Because of the displaced threshold and the tailwind, I end up at the intersection with 35 and a number of RPT aircraft are instructed to go around.)

Strict liability offence under CASR 91.255(3). Potential defences: section 30 of the CA Act and section 13 of the Criminal Code.

In Part 2 I will give a ‘big hands small maps’ explanation of how the onuses and burdens of proof work for the various defences. But at this point I hope some readers comprehend why the answer to the OP’s question is unavoidably complex.

I’m now going flying for fun.

Window heat

9th Jan 2024, 21:43

compressor stall

9th Jan 2024, 22:36

When I was preparing for command training, I subscribed to Avplan EFB to allow full access to every CASA publication with search function. If you’re trying to find info re. PIC etc, the search function is excellent. Searching for the terms you’ve mentioned will bring up the exact right answers. You can generally get 30 days access to Avplan or Aus runways for free. That’s long enough to do all the searches.
access is one thing.
interpreting the CASRs as a non lawyer is another.
In the regulatory rewrite of our Ops Manuals, we had 100+ years of flying experience sitting around a table. It took most of the afternoon for us to distill out and break down (into digestible chunks for pilots to easily understand) one reg and MOS ref in Part 121.

mig3

9th Jan 2024, 22:56

When I was preparing for command training, I subscribed to Avplan EFB to allow full access to every CASA publication with search function.

All legislation and CASA documents are available for free online as searchable PDFs.

Window heat

10th Jan 2024, 02:47

I used to use the online docs a fair bit, but when I was in training I wanted to have the lot available without exception. It was just easy and stress free. Once I returned to GA instructing during and post COVID, I kept up the subscription.

Window heat

10th Jan 2024, 03:03

Ok, so, do we all just roll over and give up?
I have no hesitation in confidently exercising the full privileges of a PIC. Like most people, I did the study, wrote notes, talked it over with trainers and got a good grip on “strick liability”. I don’t try to second guess the regs, or treat them like a typical CASA gotcha exam question.

The OP asked a very simple question, it needs a very simple answer. The scare mongering on many of the posts in this thread is not helpful. When I was a very junior pilot, the oldies seemed to delight in making a question into 10 more questions. now that I’m one of the oldies, I choose to be different and just answer the question, along with how I got the answer.

Window heat

10th Jan 2024, 03:07

Wnafly, if you haven’t read this one on strict liability, have a look.

https://consultation.casa.gov.au/regulatory-program/part-91-of-casr-and-associated-mos-for-general-ope/supporting_documents/Strict%20liability%20information%20sheet.PDF

Clinton McKenzie

10th Jan 2024, 03:52

< The OP asked a very simple question, it needs a very simple answer. >Then have at it. Provide the very simple answer.

Chronic Snoozer

10th Jan 2024, 04:47

Thank you for your post CM. A bugger's muddle indeed. It's almost as if in writing the regulations the writers kept tripping over themselves and then had to rewrite sections only to find further contradictions necessitating further rewrites resulting in more contradictions.........

I think the simple answer to the OP's question is answered in the link provided by Bleve. Where did they go? But that then begs the question what effect does that have (I've grossly simplified the issue) and you've begun the task of untangling the mess.

This is FAR 91.3

FAR 91.3 Responsibility and authority of the pilot in command.
(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.
(b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.
(c) Each pilot in command who deviates from a rule under paragraph (b) (https://www.ecfr.gov/current/title-14/section-91.3#p-91.3(b)) of this section shall, upon the request of the Administrator, send a written report of that deviation to the Administrator.

The FAR 91.3 far simpler, clearer and operationally practical than our version CASR 91.215.

Why don't we have something that closely resembles 91.3 (b)?

BuzzBox

10th Jan 2024, 05:05

Why don't we have something that closely resembles 91.3 (b)?

It'a quite simple: Too many lawyers.

Chronic Snoozer

10th Jan 2024, 05:20

But they do stupendously more flying in the US don't they? And they have more lawyers. :hmm:

Clinton McKenzie

10th Jan 2024, 05:58

Again, from the 1988 CARs:Emergency authority

145. In conforming with the rules ..., the pilot in command of an aircraft shall pay due regard to all dangers of navigation and collision and to any special circumstances which may render a departure from those rules necessary in order to avoid immediate danger.Anyone able to locate an equivalent provision in CASR?

BuzzBox

10th Jan 2024, 07:31

But they do stupendously more flying in the US don't they? And they have more lawyers. :hmm:

I was perhaps a little too flippant. How about a poorly governed regulator that has scant regard for the people who actually use the regulations to guide their operations? As a result, we've ended up with a system of regulations and other material that were written by lawyers, for lawyers. The fish rots from the head, as they say.

43Inches

10th Jan 2024, 21:39

MickG0105 said:Yes I have. You only need to look at the first few pages of the formal transcript to understand what Capt S was required to do and the context.

This was a public hearing of the NTSB’s “Office Of Administrative Law Judges”. Capt S was in front of a Board of Inquiry and was required to answer questions asked by an NSTB safety investigator, a bloke who I think was from the French equivalent of the NTSB, Ms Kolander from the Association of Flight Attendants (as you’ve noted), a representative of the FAA, a representative of the US Airline Pilots Association, and three members of the Board of Inquiry.

You and I might disagree as to the proper metaphor for the process, but it certainly did not comprise Capt S merely explaining, in a quiet chat with an NTSB investigator, what he deemed necessary to be done in the emergency, with no further comment, and the NTSB accepting that and moving on. Capt S was, in effect, cross-examined publicly about his actions – sometimes gently in his interests and sometimes more aggressively – by a number of people outside the NTSB as well as NTSB itself. (I'm confident that no PIC of an Australian RPT aircraft would expect to be formally and publicly questioned by a representative of the Flight Attendant's Association in the wake of an incident, as part of an ATSB investigation. But I'm happy to stand corrected.)

Sure: Capt S lives happily ever after. But that’s only after he was put under intense public, NTSB-mandated scrutiny involving non-NTSB people asking him questions.

My perhaps poorly made point is that there is no magic law to the effect that a PIC’s judgments in an emergency will never be the subject of any critical scrutiny and never result in negative consequences.

Thanks for that. And yes, I have no idea how somebody would think that 3+ days of public inquiry is a pleasant experience, regardless of the tone of the investigation. I've never heard of it happening here in Australia. Was there a public inquiry into QF-1 when the crew actually stuffed up, or into QF 32?

But they do stupendously more flying in the US don't they? And they have more lawyers.

I'd say your chances of being sued for anything in the US is significantly higher than in Australia. Had to laugh at the Judge Judy episode where the student pilot sued his instructor when he performed a successful emergency landing on a freeway, or another suing an instructor for damaging an aircraft when it hit a cone on the runway.

Here you can not even sue a driver that damages your car if they are insured, even if the insurer is stalling payment. You have to wait significant time and go through the ombudsman before it can progress.

BTW none of this means you should think twice about performing your duty when faced with an emergency. The rules are written in a way that prevents you from intentionally or negligently doing something and then claiming it was an emergency to get away with it. Like knowingly pushing weather and then claiming it was due 'stress of weather', when you had several other options that were just inconvenient to you. However that does mean that after an actual emergency you will most likely have to submit a report, and then most likely face some form of investigation/interview or possibly even nothing and life goes on.

BuzzBox

11th Jan 2024, 00:13

And yes, I have no idea how somebody would think that 3+ days of public inquiry is a pleasant experience, regardless of the tone of the investigation. .

Did anyone say that NTSB hearings are a "pleasant experience"? @MickG0105 challenged you to provide a reference for your claim "The NTSB was highly critical of Sullys' decision to land on the Hudson...". That claim is certainly not supported by the official transcript of the NTSB hearing. Indeed, Robert Benzon, the investigator-in-charge, stated very early in the proceedings: "The captain soon concluded that a landing in the river was the safest alternative available. During the course of the investigation, flight simulations were conducted. These flight simulations revealed that a successful return to LaGuardia or a diversion to Teterboro Airport was not assured." Sully was subsequently asked by another investigator, Dr Katharine Wilson, "What were the options that you were choosing and why did you finally choose the option of landing on the Hudson River?" Sully summarised the options and his thinking, to which Dr Wilson replied "All right, thank you." Now perhaps I've missed something, but that could hardly be described as "critical" or a "grilling" or being "put through the wringer". If I were the Captain of an airliner that ditched in a river, I'd expect to be asked similar questions by investigators, public hearing or not.

The Sully movie made it appear that the NTSB investigators took an adversarial approach and were extremely critical of Sully's actions, but how much of that is actually true? I recall that some investigators expressed their disappointment (to put it mildly) at the way they were portrayed in the movie. Perhaps you'd care to rise to Mick's challenge and provide some evidence to support your claim?

Window heat

11th Jan 2024, 01:24

I have. I described the process I went through and the tools I used and sent a reference via PM to wnafly to explain Strict liability. What I didn’t do was try to scaremonger that if they aren’t a lawyer, get ready to suffer.

Window heat

11th Jan 2024, 01:26

Then have at it. Provide the very simple answer.
That’s precisely what I did. Wanna fly asked where to find the info. I sent them a reference from CASA to kick them off and posted my own method and tools used to achieve same. What I didn’t do was talk about bush lawyering etc, I just answered the question.

Clinton McKenzie

11th Jan 2024, 02:21

You did nothing of the sort and the OP asked nothing of the sort. The OP asked for the:CASR reference regarding the PIC being allowed to vary regs/procedures/limitations if they deem it necessary in an emergency.The very simple answer to that question would be the CASR that has that effect.

You 'kicked them off' by pointing to a haystack of material of which the OP and everyone else is already aware. That, presumably, is why the OP asked the question: To avoid having to spend time trying to find a needle in that haystack.

What is the CASR has the effect of allowing a PIC to vary regs/procedures/limitations if they deem it necessary in an emergency? Quote its text here. If you can't find it, despite apparently having the tools and method and materials at your fingertips, how will the OP?

43Inches

11th Jan 2024, 02:37

Did anyone say that NTSB hearings are a "pleasant experience"? @MickG0105 challenged you to provide a reference for your claim "The NTSB was highly critical of Sullys' decision to land on the Hudson...". That claim is certainly not supported by the official transcript of the NTSB hearing. Indeed, Robert Benzon, the investigator-in-charge, stated very early in the proceedings: "The captain soon concluded that a landing in the river was the safest alternative available. During the course of the investigation, flight simulations were conducted. These flight simulations revealed that a successful return to LaGuardia or a diversion to Teterboro Airport was not assured." Sully was subsequently asked by another investigator, Dr Katharine Wilson, "What were the options that you were choosing and why did you finally choose the option of landing on the Hudson River?" Sully summarised the options and his thinking, to which Dr Wilson replied "All right, thank you." Now perhaps I've missed something, but that could hardly be described as "critical" or a "grilling" or being "put through the wringer". If I were the Captain of an airliner that ditched in a river, I'd expect to be asked similar questions by investigators, public hearing or not.

The Sully movie made it appear that the NTSB investigators took an adversarial approach and were extremely critical of Sully's actions, but how much of that is actually true? I recall that some investigators expressed their disappointment (to put it mildly) at the way they were portrayed in the movie. Perhaps you'd care to rise to Mick's challenge and provide some evidence to support your claim?

You answered it in your own post.

During the course of the investigation, flight simulations were conducted. These flight simulations revealed that a successful return to LaGuardia or a diversion to Teterboro Airport was not assured."

Why would you test alternative options if it was not for the fact you were critical of the decision to land on the Hudson? Again the simulations had been run, initially saying that a return to land could be made. Several media outlets at the time ran with this that there the flight could have returned to La Guardia, then there was debate about whether a normal human could make an immediate decision and the test were re-run with the 35 second startle factor before the inquest was convened, so by the time of the public inquiry the evidence fully backed Sully. Again you are looking at this using retrospective analysis, not what happened in the direct aftermath. Even though the subsequent simulator tests confirmed his decision he still had to face a full panel in public, why?

So there is no doubt that following the landing on the Hudson the crew still had to justify their actions, even in a public circus for everyone to watch. So yes, Sully was put through a very public wringer involving media coverage, various releases like the outcome of the simulations and then the public inquiry. None of which would have been pleasant or comfortable to deal with for any normal human. I think you guys are thinking of a 'wringer' being like an old cops show where they put the spotlight on you and throw things around, even if you do things completely arse about they won't do that to you in a transport investigation.

When you go through these sorts of investigations you are sitting around thinking about your actions, waiting and dreading phone calls, hoping the media doesn't run with some sort of random thing you did, dealing with multiple calls and emails from various agencies. Its not fun and even lessor incidents can feel like being tortured as you don't exactly know whats coming next.

MickG0105

11th Jan 2024, 04:08

…
This was a public hearing of the NTSB’s “Office Of Administrative Law Judges”.

Yes, it was – a somewhat grandiose title for a standard feature of the US accident investigation process for significant accidents.

…
Capt S was in front of a Board of Inquiry and was required to answer questions asked by an NSTB safety investigator, a bloke who I think was from the French equivalent of the NTSB, Ms Kolander from the Association of Flight Attendants (as you’ve noted), a representative of the FAA, a representative of the US Airline Pilots Association, and three members of the Board of Inquiry.

Yes, he was. In exactly the same fashion as the other 23 witnesses appearing before the Board. The other witnesses included a passenger, together with representatives of the FAA, EASA, Airbus, CFM, the US Department of Agriculture, NASA, and US Airways.

…
You and I might disagree as to the proper metaphor for the process, but it certainly did not comprise Capt S merely explaining, in a quiet chat with an NTSB investigator, what he deemed necessary to be done in the emergency, with no further comment, and the NTSB accepting that and moving on.

Your contention was that Captain Sullenberger was “put through the ringer”. I doubt very much whether any fair minded person who has watched his testimony would agree with that characterisation.

…
Capt S was, in effect, cross-examined publicly about his actions – sometimes gently in his interests and sometimes more aggressively – by a number of people outside the NTSB as well as NTSB itself

The Captain was most assuredly not “cross-examined” under any normal meaning of the phrase.

Of the roughly 65 questions that were put to him in the hour that he offered testimony, only about half a dozen related to his actions on the day. And there was only one occasion where one of his actions was queried in a challenging manner (that of his cabin PA announcement just prior to the ditching).

Notably, as soon as a question put to Captain Sullenberger became somewhat interrogative, the Board Chairman, Sumwalt, shut it down.

…
Sure: Capt S lives happily ever after. But that’s only after he was put under intense public, NTSB-mandated scrutiny involving non-NTSB people asking him questions.

Again, there is not a scintilla of evidence – apart from a fictionalisation of public hearing portrayed in a movie - to support that contention. What is notable is that there was essentially no commentary on the NTSB’s handling of the matter until the movie was released.

... And yes, I have no idea how somebody would think that 3+ days of public inquiry is a pleasant experience, regardless of the tone of the investigation.

3+ days?? The public hearing ran over three days, 9 – 11 June 2009 inclusive, and was concluded by 10.30am on the third day. Captain Sullenberger gave testimony for less than an hour.

Board Chairman Sumwalt opened the hearing noting,

‘... in preparation for this hearing, I flew through the accident scenario in a flight simulator. I've listened to the Cockpit Voice Recorder in real time and as an experienced pilot, I can tell you this flight crew had a lot going on. They had a lot going on in a very short period of time. And, in considering what could have been done differently, there is certainly no intention by the Safety Board to diminish the crew’s and the first responder’s extraordinary success in saving the lives of all passengers and crew that day.’

Sumwalt's questions to the Captain were essentially Dorothy Dixer's, either entirely complimentary or offering the Captain the opportunity to speak about safety standards and pilot training.

And Sumwalt concluded the Captain’s testimony by saying,

‘Thank you. Captain Sullenberger, I have no further questions. I want to thank you very much for your testimony, for being here this morning, and for representing the piloting profession as you do. You are excused from the witness stand. Thank you very much.’

And, of course, had the NTSB not run any simulations, we would have had to have endured some galah banging on incessantly about a return to La Guardia being a valid option, and US Airways being given preferential treatment.

…
I've never heard of it happening here in Australia.

To the surprise of I am sure nobody other than yourself, the use of public hearings, while common in the US, is not a feature of the investigative process here.

KRviator

11th Jan 2024, 04:25

Again, there is not a scintilla of evidence – apart from a fictionalisation of public hearing portrayed in a movie - to support that contention. What is notable is that there was essentially no commentary on the NTSB’s handling of the matter until the movie was released.I''m not sure if this comment is referring to the point of the crew being questioned by non-NTSB people, or the crew getting the rough end of the pineapple while doing so.

In the event it's the former, as part of NTSB investigations and the subsequent dockets, there certainly are non-NTSB people who will question the crew as part of an "NTSB" investigation. One that stands out (for me) was the crew of a BNSF coal train that hit a barge of all things, who were subsequently interrogated by two members of the US Coast Guard as part of the "NTSB" investigation...If you were to tell me that I'm going to go to work today and I'll be interviewed by Marine Rescue tomorrow because of some screwup on the railway line at Wondabyne, I'd try to have you committed, but that's precisely what happened over there ->>.

Clinton McKenzie

11th Jan 2024, 04:51

It's always interesting when you – very unusually – make categorical statements, Mick. “Not a scintilla of evidence”? “Most assuredly not under any normal meaning”? It's not your style and I'm yet to work out the 'trigger'.

You say “there is not a scintilla of evidence – apart from a fictionalisation of public hearing portrayed in a movie - to support [my] contention” that Capt “was put under intense public, NTSB-mandated scrutiny involving non-NTSB people asking him questions.”

The NTSB hearing was public. Capt S was required to attend. He was required to answer, publicly, questions asked by, among others, people who were not from the NSTB. The hearings were the subject of reporting by the media. Those are things I call “facts” and my understanding is that relevant facts count as “evidence”.

You also say Capt S “was most assuredly not “cross-examined” under any normal meaning of the phrase”. Well, my meaning includes a witness being compelled to answer questions even if they may be embarrassing or adverse to the witness's interests or credibility. That was, in effect, the position into which Capt S was put. He was – literally – a ‘witness’ called to give evidence to the NTSB’s ‘Office of Administrative Law Judges’, and had to answer questions that could have been embarrassing or adverse to his interests or credibility. The fact that he now lives happily ever after and the process did not turn out to have had any of those effects doesn’t alter the nature of the process when it's happening.

But let’s assume I'm wrong in all of that. I’m sure the OP would appreciate it – as would I – if you applied your formidable intellect and research skills to answering the OP’s questions. Do you have a view on the answers?

BuzzBox

11th Jan 2024, 04:57

Why would you test alternative options if it was not for the fact you were critical of the decision to land on the Hudson?

Perhaps it comes down to your definition of "critical". If you meant "expressing or involving an analysis of the merits and faults" of Sully's actions, then yes, the NTSB was "critical" and the simulations were part of that critical process. If, however, you meant "expressing adverse or disapproving comments or judgements", then I respectfully disagree. I do not believe the NTSB expressed any such comments or judgements and the simulations were not the result of the NTSB's disapproval of Sully's actions. Given the tone and content of your other comments, I took you to mean the latter of those two definitions.

As far as I'm aware, the negative commentary regarding Sully's decision to ditch in the Hudson was the result of media speculation after the details of the simulations were made public. That commentary did not come from the NTSB. Happy to be proven wrong.

Even though the subsequent simulator tests confirmed his decision he still had to face a full panel in public, why?

Because that's what occurs with most major accidents investigated by the NTSB, especially in cases where there's a public interest. There was a lot more to the investigation than Sully's decision to ditch the aircraft.

So there is no doubt that following the landing on the Hudson the crew still had to justify their actions, even in a public circus for everyone to watch. So yes, Sully was put through a very public wringer involving media coverage, various releases like the outcome of the simulations and then the public inquiry. None of which would have been pleasant or comfortable to deal with for any normal human.

There's little doubt the whole process could be likened to Sully being "put through the wringer". It certainly would not have been pleasant. My bone of contention, however, is the notion that the NTSB was critical of Sully's ditching decision, which resulted in him being "put through the wringer" at the hearing. That is simply not true.

MickG0105

11th Jan 2024, 05:25

...
Again the simulations had been run, initially saying that a return to land could be made. Several media outlets at the time ran with this that there the flight could have returned to La Guardia, then there was debate about whether a normal human could make an immediate decision and the test were re-run with the 35 second startle factor before the inquest was convened ...
That is complete and utter nonsense! ALL the simulations were run in Toulouse over the period 14-16 April 2009. And the inclusion of a 35-second delay after the bird-strike and before any turn was undertaken was factored in at that time. It is all addressed in the NTSB report Simulator Evaluations for US Airways A320 Flight 1549 Accident, Ditching in Hudson River, 1/15/09 (NTSB # DCA09MA026)

BuzzBox

11th Jan 2024, 06:16

Yeah whatever you reckon, never said they were run apart, the 35 second delay was added last, again after it was interjected that the initial runs were not realistic. Not sure what you are arguing but it makes no sense.

Wasn't it you who said "the initial simulator exercises lent weight to their argument after 7 of 13 attempts landed successfully at La Guardia, it was only after it was argued that there needed to be a 'startle' delay added to the simulations that it was proved that any attempt to return to land was not the right course", or was it someone else who goes by the name of "43Inches"? Whatever the case, it's total bull:mad: that repeats the nonsense portrayed in the movie.

Mick's comment makes perfect sense to anyone who has actually read and understood the simulator evaluation report that was released by the NTSB. The evaluation was conducted over a three-day period, with the 35-second delay introduced on day two. The delay runs were conducted after the no-delay runs to reduce the total number of runs required. There was simply no point repeating runs with a 35-second delay when it had already been shown that an immediate turn back was unsuccessful.

BuzzBox

11th Jan 2024, 06:28

Ask yourself why would they run 30 odd simulations without a delay then suddenly late in the day do one including a 35 second delay.... you are all quoting a report written after and wont want to make it look like the investigators wasted tine and money.

FFS, you are WRONG. Read the report and stop making things up!

BuzzBox

11th Jan 2024, 06:37

Already read it and numerous times I take it uou have not or you would see the same. Also know players involved so way more than the report.

Sure you have. I guess you missed this bit numerous times too:

In these scenarios, the turn towards the airport following the bird strike was immediate in order to determine, from an aerodynamic point of view, whether the airplane had the performance to glide to a runway from the bird strike location. The immediate turn does not reflect or account for real-world considerations such as the time delay required to recognize the bird strike, and decide on a course of action. These factors are considered in Conditions 2.2c and 2.3c by incorporating a 35-second delay prior to the turn towards the airport.

The second day of a three-day trial period is hardly "suddenly late in the day".

Clinton McKenzie

11th Jan 2024, 07:12

For an Australian example, look what BASI and CAA did to Rod Lovell after the ditching of VH-EDC shortly after take off from Sydney, from which ditching all pax and crew were evacuated and survived. One person (a flight attendant) suffered serious injuries. No magic CAR protected Capt Lovell from having his licence suspended.

swh

11th Jan 2024, 09:17

Hi all,

can anyone point me in the direction of a CASR reference regarding the PIC being allowed to vary regs/procedures/limitations if they deem it necessary in an emergency?

Also, CAR 235 used to talk about landing overweight being prohibited, but it was a defence to prosecution if it was done in an emergency situation. Looking for a CASR equivalent for that too…

many thanks

The old reference was in CAR 1988

145 Emergency authority

145. In conforming with the rules contained in the provisions of Division 2 of this Part and in the provisions of Parts XI and XII, the pilot in command of an aircraft shall pay due regard to all dangers of navigation and collision and to any special circumstances which may render a departure from those rules necessary in order to avoid immediate danger.

This was repealed as the Civil Aviation Act 1988 includes the provisions of the Criminal Code Act 1995, which already covers acts of emergency and duress. Etc

Division 10—Circumstances involving external factors

10.1 Intervening conduct or event

A person is not criminally responsible for an offence that has a physical element to which absolute liability or strict liability applies if:

(a) the physical element is brought about by another person over whom the person has no control or by a non‑human act or event over which the person has no control; and

(b) the person could not reasonably be expected to guard against the bringing about of that physical element.

10.2 Duress

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.

(2) A person carries out conduct under duress if and only if he or she reasonably believes that:

(a) a threat has been made that will be carried out unless an offence is committed; and

(b) there is no reasonable way that the threat can be rendered ineffective; and

(c) the conduct is a reasonable response to the threat.

(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.

10.3 Sudden or extraordinary emergency

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.

(2) This section applies if and only if the person carrying out the conduct reasonably believes that:

(a) circumstances of sudden or extraordinary emergency exist; and

(b) committing the offence is the only reasonable way to deal with the emergency; and

(c) the conduct is a reasonable response to the emergency.

10.4 Self‑defence

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self‑defence.

(2) A person carries out conduct in self‑defence if and only if he or she believes the conduct is necessary:

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

(c) to protect property from unlawful appropriation, destruction, damage or interference; or

(d) to prevent criminal trespass to any land or premises; or

(e) to remove from any land or premises a person who is committing criminal trespass;

and the conduct is a reasonable response in the circumstances as he or she perceives them.

(3) This section does not apply if the person uses force that involves the intentional infliction of death or really serious injury:

(a) to protect property; or

(b) to prevent criminal trespass; or

(c) to remove a person who is committing criminal trespass.

(4) This section does not apply if:

(a) the person is responding to lawful conduct; and

(b) he or she knew that the conduct was lawful.

However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it.

10.5 Lawful authority

A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.

Clinton McKenzie

11th Jan 2024, 18:45

And this is also in the Criminal Code...13.3 Evidential burden of proof—defence

(1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.

(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 [ which includes all that stuff in section 10 ] (other than section 7.3) bears an evidential burden in relation to that matter.

(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.

(5) The question whether an evidential burden has been discharged is one of law.

(6) In this Code:

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

13.4 Legal burden of proof—defence

A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly:

(a) specifies that the burden of proof in relation to the matter in question is a legal burden; or

(b) requires the defendant to prove the matter; or

(c) creates a presumption that the matter exists unless the contrary is proved.

13.5 Standard of proof—defence

A legal burden of proof on the defendant must be discharged on the balance of probabilities.A defence is not an authority.

compressor stall

12th Jan 2024, 04:59

Clinton, can we trouble you for the evidential burden following in your example of avionics fire and diverting to YSCB?

MickG0105

12th Jan 2024, 06:25

I''m not sure if this comment is referring to the point of the crew being questioned by non-NTSB people, or the crew getting the rough end of the pineapple while doing so.
...
The rough-end of the pineapple, specifically the contention that Captain Sullenberger "was put under intense public, NTSB-mandated scrutiny".

MickG0105

12th Jan 2024, 07:05

It's always interesting when you – very unusually – make categorical statements, Mick. “Not a scintilla of evidence”? “Most assuredly not under any normal meaning”? It's not your style and I'm yet to work out the 'trigger'.
...
Clinton, if I happen upon a post that I think is mistaken, and if I have something factual to add, I am usually inclined to comment. When someone elects to double-down on something that is manifestly mistaken, that will routinely draw a somewhat more pointed response.

For better or for worse, I am afflicted with acquired afabulasia; that is, I am bull**** intolerant.

You have proposed a narrative for Captain Sullenberger's treatment by the NTSB that, if not based on the fictionalised account presented in the movie, is so similar as to be not discernibly different.

Regarding the Public Hearing, the video of Captain Sullenberger's testimony is available on YouTube, and the transcript (https://data.ntsb.gov/Docket/Document/docBLOB?ID=40315650&FileExtension=.PDF&FileName=Transcript%20-%20Public%20Hearing%20Day%201%20(06%2F09%2F09)-Master.PDF) is available on the NTSB website; people can form their own views as to how the Captain was treated.

You seem concerned about the public nature of the hearing; that is a feature of the US system. If you have read Captain Sullenberger's book, Highest Duty, you might recall that the Captain, and his wife, accepted that from "within minutes of the world learning of Flight 1549", that they were now public figures. And the Captain resolved to use that position to advance aviation safety. (If you haven't read Highest Duty, that would be a good starting point before registering offence on the fellow's behalf.)

The NTSB public hearing, much like the earlier Congressional public hearing that Captain Sullenberger had attended (together with the presiding NTSB Chairman, no less), provided an opportunity for him with regard to advancing aviation safety. And that opportunity at the NTSB hearing was largely facilitated by the panel members' questions put to him. Questions such as:

DR. WILSON [NTSB]: Could you please describe what training you received at US Airways that you felt was most useful to helping you manage this event? ...

DR. WILSON: Looking back at the accident event, is there anything that you would do differently if you were faced with that situation again? ...

DR. WILSON: And one last question for you. Is there anything else that you would like to discuss today that we have not asked you so far? ...

CAPT. SICCHIO [US Airline Pilots Association]: Thank you for your testimony this morning. Just a couple of questions for you. Would you be kind enough to describe your background in CRM for us?

CAPT. SULLENBERGER: Yes. As I stated, I was selected to be among a couple of dozen pilots to be a course developer of our initial one-day introductory seminar. We helped implement that course and I was a facilitator for several years as we taught all our pilots the initial introductory phase. And then, in the follow-on Phase 2, where we did recurrent training in our annual classroom training, I was also a facilitator.

CAPT. SICCHIO: Thank you. And in fact, Captain Sullenberger, did you actually participate as a group that brought CRM to the airline in the very beginning?

CAPT. SULLENBERGER: Yes. I think I may have actually taught the very first CRM course in a beta mode in our training facility in San Diego in the late '80s. We adapted a course that was used by the U.S. Air Force within the Military Airlift Command ...

CAPT. SICCHIO: Great, thanks. So basically, you were in on the very ground floor development of CRM, ...

DR. KOLLY [NTSB]: You mentioned that you did not have any simulator training with regard to a forced water landing. Do you think such training would be beneficial?

CAPT. SULLENBERGER: Yes.

DR. KOLLY: And can you explain how? What, in the training, would you like to see, what do you think would help the situation? ...

CHAIRMAN SUMWALT [NTSB]: Captain Sullenberger, I've been at the Safety Board now almost three years and unfortunately, we don't usually have -- oftentimes don't have the flight crew to talk to. I appreciate your being here. Physically, I'm glad you're here so that we can ask questions.

CAPT. SULLENBERGER: Thank you.

CHAIRMAN SUMWALT: This event turned out differently than a lot of the situations the Board looks at. Tell me, in your mind, what made the critical difference in this event? How did this event turn out so well compared to, perhaps, other events that we see at the Safety Board? ...

CHAIRMAN SUMWALT: You testified to Congress -- you and I testified on the same day back in February, and you mentioned that the airline piloting profession faces some challenges. I want to make sure -- unfortunately, we, at the Board, we see events that don't have, oftentimes, good outcomes, so what can we extract from your mindset, from the things you've learned, to basically hand over to others in your profession? ...

CHAIRMAN SUMWALT: Thank you. In looking at the CVR transcript and listening, actually, to the CVR, I noticed that you immediately, after both engines were lost, you immediately turned on the ignition; you fairly much immediately started the APU and then commanded for the loss of both engines checklist. Oftentimes -- and we may even get some testimony on this later this morning or later today -- oftentimes, when somebody is faced with an unusual or surprising situation, there's a choke factor, there's a startle response. You did not seem to exhibit that startle response. It was like you knew, you were prepared for this, you knew immediately what to do. What do you attribute that to?

CAPT. SULLENBERGER: Well, if you think I wasn't startled, you misunderstand. But I think both Jeff Skiles and I have done this long enough and trained long enough to have internalized the values of our profession and to have learned what needs to be done, and so we quickly acknowledged our bodies' innate physiological reactions, set it aside and began to work on the task at hand.

CHAIRMAN SUMWALT: And I think that is so important. I'm trying to get an idea of what your mindset is and how you were there. I can contrast you to a crew that we looked at recently that I mentioned the captain said he was ambivalent. They had an engine fire 800 feet AGL and it took about three and a half minutes before they completed the checklist, which should be a memory item, should be done immediately. So I want to be able to bottle your mindset and be able to make sure that everybody is drinking from that same bottle.

This is not to say that all of questions put to Captain Sullenberger at the hearing were so accommodating. Ms Kolander (Association of Flight Attendants) clearly wanted to explore the adequacy of the capacity of the slide rafts for water evacuations. In that regard, she almost certainly had some legitimate safety points to make, however her handling of that was, at best, obtuse.

Notably though, the NTSB Chairman intervened to protect the Captain from Ms Kolander's line of questions.

I really don't have anything further to say on the matter. People can look at the evidence and form their own views.

...
I’m sure the OP would appreciate it – as would I – if you applied your formidable intellect and research skills to answering the OP’s questions. Do you have a view on the answers?

Separately, regarding the question posed by the Thread Starter, if I had anything germane to offer, I certainly would have posted it.

Clinton McKenzie

14th Jan 2024, 20:05

More power to your bull**** detector, Mick. I appreciate the content of all your posts. But you do need to recalibrate your fact versus opinion valve (in my opinion). Different opinions as to the characterisation of the same facts doesn’t turn opinions different to yours into bull****.

Anyhooo…

CASRs which confer positive authority on PIC’s to deviate from the rules in emergency circumstances do not exist. There is no equivalent to FAR 91.3(b) or CAR 145 in CASR. I’m happy to stand corrected if someone can find and quote one. But I’m not interested in stuff that isn’t law.

There are now provisions which, when they operate, are exceptions or defences to what would otherwise be offences. Those provisions are sprinkled inside CASR, there are generally-applicable ones in the Criminal Code and there’s a long-standing one in the CA Act. However, as I’ve noted before, an authority conferred by the rules is not the same as an exception or defence to what would otherwise be an offence.

I said I would provide a ‘Part 2’ to my earlier post that focussed on the existing provisions requiring clearances and operations in accordance with clearances for entry/operation within controlled airspace and landing/taking off from a controlled aerodrome. Again, this is merely ‘big hands; small maps’ stuff and will contain errors and omissions.

Let’s just take two examples out of my emergency scenario:

1. Entry into controlled airspace without a clearance.

2. Failure to comply with the clearance and instruction to join right downwind RWY 30.

Entry into controlled airspace without a clearance

As we’ve seen, entry into controlled airspace without a clearance is a bog standard strict liability offence under CASR 91.255(3). The offence is committed as soon as I enter controlled airspace without a clearance, and is made out if the prosecution proves that fact beyond reasonable doubt (BRD).

Unlike non-compliance with an ATC clearance or instruction, there is no exception or defence ‘built in’ to CASR 91.255. Therefore, it’s off to sections 10 and 13 of the Criminal Code and section 30 of the CA Act.

Section 10.3 (quoted earlier) is the immediately obvious provision of the Criminal Code that could absolve me from criminal responsibility in the circumstances:10.3 Sudden or extraordinary emergency

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.

(2) This section applies if and only if the person carrying out the conduct reasonably believes that:

(a) circumstances of sudden or extraordinary emergency exist; and

(b) committing the offence is the only reasonable way to deal with the emergency; and

(c) the conduct is a reasonable response to the emergency.Before we get to the bit about who bears what onuses and burdens about all that – dealt with in section 13 - note the following:

Although there appear to be only 3 – cumulative – criteria for the application of the section, there is actually another overriding one: That the PIC “reasonably believes” that each of the listed criteria exist. That imposes an objective as well as subjective state of mind test. Did the PIC actually believe the 3 criteria existed and would a reasonable pilot in the same circumstances have that belief?

To make the point with an absurd example, a pilot might subjectively believe, on the basis of having just read an astrologer’s predictions, that the aircraft must be landed immediately to avoid a disaster, but no reasonable pilot would form that belief on that basis. So note that just because you actually and earnestly believed something doesn’t mean your belief was “reasonable”.

The PIC has to reasonably believe that the emergency is “sudden” or “extraordinary”. To tease this one out, think about fuel situations and orbiting just outside a CTR boundary only 5nms from the runways waiting for a requested clearance (as in my scenario). I would argue that a PIC then calculating that the aircraft will land with 1 minute less than the required final reserve fuel is not a “sudden” or “extraordinary” emergency, justifying an immediate entry into controlled airspace and immediate landing without a clearance, even though the PIC is required to broadcast a “MAYDAY”. It’s an artificial emergency that’s neither sudden nor extraordinary, and nobody’s in immediate danger in the circumstances (in my opinion). If I haven’t been given a clearance to enter 15 minutes later…

The PIC has to reasonably believe that the conduct constituting to offence is the “only” “reasonable” way to “deal with the emergency”. If there was a nice uncontrolled aerodrome for GA aircraft near Black Mountain in Canberra – oh how we wish – some might argue that I should have immediately landed there rather than YSCB. I might argue that I chose YSCB because of the immediate availability of the RFFS.

Many variables here, and that “only” word has real consequences. And to tease out a further point with an absurd example, if I decide to do a quick diversion to ‘buzz’ my mate’s house on the way to my emergency landing – low flying is another offence – I’m not absolved from criminal liability for that offence. The diversion to ‘buzz’ my mate’s house was not dealing with the emergency.

The PIC has to reasonably believe that the conduct is a “reasonable response” to the emergency. Again, many variables.

Remember: A bunch of ‘Monday morning quarterbacks’ will be helping to bury you by speculating, on PPRuNe, about what you could and should have done instead of what you did do, and why you shouldn’t have been in the situation in the first place.

Now we need to look at section 13 of the Criminal Code, because there’s good news and bad news in it. The bad news is that you (usually) bear the onus in relation to the matters listed above; the good news is that the burden is comparatively ‘low’ and not BRD.

Here are the more important bits of section 13 (quoted earlier):13.3 Evidential burden of proof—defence

(1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.

(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 [ which includes all that stuff in section 10 ] (other than section 7.3) bears an evidential burden in relation to that matter.

(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.

(5) The question whether an evidential burden has been discharged is one of law.

(6) In this Code:

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

13.4 Legal burden of proof—defence

A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly:

(a) specifies that the burden of proof in relation to the matter in question is a legal burden; or

(b) requires the defendant to prove the matter; or

(c) creates a presumption that the matter exists unless the contrary is proved.

13.5 Standard of proof—defence

A legal burden of proof on the defendant must be discharged on the balance of probabilities.Section 13.3 is directly relevant to the application (or not) of section 10.3 and, therefore, my offence under CASR 91.255(3) for entry into controlled airspace without a clearance. (I included the rest because it’s relevant to s 30 of the CA Act.)

I have to adduce or point to evidence that suggests a reasonable possibility that I reasonably believed:

- circumstances of sudden or extraordinary emergency existed; and

- entry into controlled airspace without a clearance was the only reasonable way to deal with the emergency; and

- entry into controlled airspace without a clearance was a reasonable response to the emergency.

Fortunately for me, the burden of ‘adducing or pointing to evidence that suggests a reasonable possibility’ is not very onerous. I reckon my emergency scenario would be sufficient to discharge the burden, but that would be – or should be - a decision of a judge.

(I say “should be” a decision of a judge because all of these judgments can effectively be made by CASA in the course administrative decisions, without ever going anywhere near a court. And that is one of the more insidious aspects of the regulatory regime to which many object, and why the difference between positive authority in the law to deviate from the law, on the one hand, and an exception or defence to criminal liability, on the other, is important.)

(Note also that it’s possible that the prosecution’s case will, in itself, include evidence that discharges the burden, if the matter goes to court. That’s what s 13(4) is about and why I said we’ll ‘usually’ bear the onus.)

However, I may not be in the clear yet. If I discharge the evidential burden, the prosecution can still prove that one or more of the 3 criteria is/are not satisfied, but has to do so BRD. If I crash and burn on any 1 or more, I crash and burn on the application of s 10.3. Offence committed; criminally responsible (because I doubt s 30 of the CA Act would save me in those circumstances).

Section 30 of the CA Act has been there a long time and provides a general defence in proceedings for an offence against the Act or regs. I don’t know if it’s ever been used successfully, because it has quite narrow application and the defence burden on the defendant is higher than what’s in s 13.3 of the Criminal Code:CIVIL AVIATION ACT 1988 - SECT 30

Weather etc. to be a defence

(1) In any proceedings for an offence against this Act or the regulations, it is a defence if the act or omission charged is established to have been due to extreme weather conditions or other unavoidable cause.

(2) Any defence established under subsection (1) need only be established on the balance of probabilities.The word “unavoidable” is what makes its application so narrow. I think the generally accepted interpretation is that the word “other” has the effect of limiting “extreme weather conditions” to unavoidable extreme weather conditions. So, for example, breaches of the rules in response to some emergency arising from choosing to fly into forecast extreme weather, or pressing on into extreme weather when there’s an available, safe ‘Plan B’, probably won’t ‘cut it’.

As can be seen, the burden imposed on us by s 30 is the ‘balance of probabilities’, which is ‘lower’ than BRD but ‘higher’ than ‘adducing or pointing to evidence that suggests a reasonable possibility’. My fire scenario would probably discharge the ‘balance of probabilities’ burden. But again, having discharged the burden, it’s still open to the prosecution to disprove BRD. If the fire behind my instrument panel was caused by me doing some illegal, dodgy wiring modifications, was the emergency “unavoidable”?

Failure to comply with the clearance and instruction to join right downwind RWY 30.

The offence here includes a ‘built in’ exception:91.257 Air traffic control clearances and instructions

(1) The pilot in command of an aircraft for a flight contravenes this subregulation if, during the flight:

(a) air traffic control gives the pilot in command an air traffic control clearance or air traffic control instructions; and

(b) the pilot in command does not comply with the clearance or instructions.

(2) Subregulation (1) does not apply if:

(a) it is not practicable to seek authorisation for the non compliance before it occurs; and

(b) the non compliance is necessary for the safety of the aircraft or the persons on the aircraft; and

(c) the pilot in command informs air traffic control about the non compliance as soon as practicable after the pilot in command is unable to comply with the clearance or instructions.

(3) A person commits an offence of strict liability if the person contravenes subregulation (1).

Penalty: 50 penalty units.

Note: A defendant bears an evidential burden in relation to the matters in subregulation (2): see subsection 13.3(3) of the Criminal Code.Note that the 3 criteria for the operation exception are – like the criteria in s 10.3 of the Criminal Code – cumulative, but – incoherently – different from the criteria in s 10.3 of the Criminal Code.

But the good news is the criteria in CASR 91.257(2) are less ‘PIC unfriendly’ than the ones in s 10.3 of the Criminal Code. The non-compliance does not have to be in circumstances of “sudden or extraordinary emergency” and the non-compliance does not have to be the “only” reasonable way to deal with the circumstances, in order for the exception to operate.

As with the entry without clearance offence, I bear the burden of ‘adducing or pointing to evidence that suggests a reasonable possibility’ of the existence of circumstances satisfying each of the criteria in CASA 91.257(2) and, if I discharge that burden, it’s still open to the prosecution to disprove the existence of those circumstances, but BRD. I reckon my emergency scenario would be enough.

Section 30 of the CA Act also applies in principle, as set out earlier.

An earlier poster asked the rhetorical question: Do we all just roll over and give up? The poster used the word “scaremongering”.

I’m just trying to explain how the regulatory regime works (and stay sane), in response to the OP's 'simple' question. Nearly 40 years in, none of the above has ever bothered me when I’m flying. As the earlier poster said: “I have no hesitation in confidently exercising the full privileges of a PIC”. None of the above matters. Until it does.

Regards and safe flying.

compressor stall

14th Jan 2024, 22:41

Thanks Clinton. A bit to digest.

Clinton McKenzie

14th Jan 2024, 23:08

No worries. As I said earlier, nibbling at this elephant doesn't work.

43Inches

14th Jan 2024, 23:32

In short you are covered if something out of your control inadvertently puts you into a situation that requires you to break a law. However you can not push on into known weather, or through a known flock of birds, fly with known aircraft issues that could affect safety, and expect to be completely exonerated. If during the Investigation there is evidence of criminal or negligent behavior then that info may/will be passed on to law enforcement agencies to look into. If you are found to have contributed to the situation in some manner that's less than criminal or pure neglect then civil action may be available to those physically or financially affected. The ATSB may not concern themselves with legal matters, but if the report hints you created the problem then the lawyers will use that information to dig. Advice = Stay away from legal grey areas, operate well within the law, take being PIC seriously.

I’m just trying to explain how the regulatory regime works (and stay sane), in response to the OP's 'simple' question. Nearly 40 years in, none of the above has ever bothered me when I’m flying. As the earlier poster said: “I have no hesitation in confidently exercising the full privileges of a PIC”. None of the above matters. Until it does.

And same with me, the legal burden does not bother me at all, because it only applies if you 'sail too close to the wind'. The road is far more of a legal minefield. And most of us will speed, rush around pushing yellow lights, even use the phone whilst driving at some point, and if you happen to crash in any of those scenarios and injure somebody you could be in a world of legal hurt. Luckily in Australia the road system has the TAC and strict insurance requirements or it would be very nasty for many. I've been involved in a number of aviation incidents, none of which have gone beyond ATSB interest. However I do know a few unlucky souls that have made simple mistakes, that could easily have been avoided and ended up with large financial burdens.

43Inches

15th Jan 2024, 23:27

Not entirely related to thread, but a good example of what happens when you do break the law and death and injury is a result. The driver of the Hunter Valley bus crash has just had his charge count increased and upgraded to 10 counts of Manslaughter, among 80 odd other charges. My initial thoughts was that the driver has not shown much remorse over the occurrence which I will not label an accident, so the charges just keep piling on as the investigation continues. Sounds like he may be spending a long time in jail over a situation he could have easily avoided. He may not have even been speeding when the bus toppled (most likely was significantly over the corner speed for that vehicle), but his actions leading up to the crash have definitely hung, drawn and quartered him.

PS If you do drive road vehicles where passengers can stand up and will not listen to your demands to sit down and buckle up, pull over and don't move until they comply. As driver, like the PIC of an aircraft you are responsible for the occupants. When they are non compliant it just makes the situation complicated.

Icarus2001

16th Jan 2024, 06:11

43 inches, is there any topic which you do not provide expert commentary on?

43Inches

16th Jan 2024, 21:16

43 inches, is there any topic which you do not provide expert commentary on?

Nothing I've added is about 'expert commentary', however if one pilot reads this and decides not to push low cloud down the valley of death today on the basis of using 'stress of weather' as a defence, then I'm happy.

KRviator

16th Jan 2024, 23:51

Tell you what - I do enjoy reading about our legal system at times. Why's that? Well, 16 of the charges to which 43I refers are "drive furiously in motor vehicle causing bodily harm". That's something I've never heard of before in NSW, so I Google'd it, and the legislation is so quaint it makes me smile.
CRIMES ACT 1900 - SECT 53 (https://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s53.html)
Injuries by furious driving etc
53 Injuries by furious driving etc
Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years.oGoogle also found this YT showing the roundabout in question not long after it happened, showing the route he's taken. If ol' mate in his car has to go that slow round there, makes you wonder just what the goose in the bus was thinking!

https://www.youtube.com/watch?v=npRrsSRRaT4

And now, back to your regularly scheduled thread derailment! :ouch:

43Inches

17th Jan 2024, 00:13

oGoogle also found this YT showing the roundabout in question not long after it happened, showing the route he's taken. If ol' mate in his car has to go that slow round there, makes you wonder just what the goose in the bus was thinking!

My point in including it, was not just for the legal issues that are arising from this crash, but also I hope that there will be some insight into the human factors. What caused the bus driver to drive so 'furiously', abandon the law, and drive well beyond his abilities, was it habitual, was he set off by the passengers not complying, etc etc. I wonder if there is anything that can be crossed over to aviation to use, to learn from, about slowing down, and taking it easy when things get aggravating, not as you want. Was there a hint of 'hurry up' I'll just get them to the destination as fast as possible and get rid of this mob, was it just a bad day for him, who knows...

Anyway, big thread drift....

KRviator

17th Jan 2024, 00:41

My point in including it, was not just for the legal issues that are arising from this crash, but also I hope that there will be some insight into the human factors. What caused the bus driver to drive so 'furiously', abandon the law, and drive well beyond his abilities, was it habitual, was he set off by the passengers not complying, etc etc. I wonder if there is anything that can be crossed over to aviation to use, to learn from, about slowing down, and taking it easy when things get aggravating, not as you want. Was there a hint of 'hurry up' I'll just get them to the destination as fast as possible and get rid of this mob, was it just a bad day for him, who knows...

Anyway, big thread drift....My reading of the news articles at the time was similar to ol' mate in the video. Someone's called him out on speed for whatever reason and he's thought "I'll show you what fast means!" and it hasn't turned out like he planned. Hell, I've driven that roundabout more times than I can count and even I've come up to it a bit quick and got the side-eye from the KRviatrix - but he rolled it on the opposite corner to where he entered, so he's gained speed as he's traversed the roundabout.

Anyways....In terms of what we can learn from that in an aviation environment, there's probably several factors, including needing the skillset to not allow passengers to get under your skin. Now that's probably not a huge issue for most airline pilots granted, but for cabin crew and gate agents, it's a different story. How often have we seen reports of SLF being off-loaded because they've done or said something the CC didn't like, and then the FA's gone on a power trip? That Doctor in the US who was offloaded and beaten because they "needed" to have a deadheading crew on the flight and didn't give a damn about what the Doctor needed. Our way or the highway! was the mentality, and no one seemed to consider asking if anyone else would be happy to get off. And look where that little incident took the airline!

Another aspect could well be being less prone to impulsivity and along with that knowing the limits of your vehicle - be it an airborne one or not. There was no need for him to go that hard round the roundabout, but by the same token, if he had needed to, say to try to expedite medical attention for a passenger or something, you need a better idea of what you can do with your vehicle. Again, for us, we have SOP's and the like, but what happens when you have an uncontained cabin fire? Would you stop your nose-down input at the barberpole, or would you go a bit beyond? How far beyond is safe? Have you read the certification standards to know what your 737 has actually been tested to - not just what the ASI says is the limit?

Finally, and most importantly, as the boating mantra goes, "You're the Skipper - You're responsible!"