PIC command authority
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..
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..
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.
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.
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..
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..
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.
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).
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).
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.
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.
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.
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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.
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."
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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.
Thanks for the belly laugh, Lookleft!
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-civi...ger-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:
These are the relevant sections of the Acts:
Civil Aviation Act 1988
30 Weather etc. to be a defence
10.3 Sudden or extraordinary emergency
https://www.casa.gov.au/mapping-civi...ger-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(2) Any defence established under subsection (1) need only be established on the balance of probabilities.
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:
(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.
(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.
Last edited by Bleve; 9th Jan 2024 at 02:28.
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.
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/publicat...qualifications.
I’d just point them here. https://www.ag.gov.au/crime/publicat...qualifications.
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’.
(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, 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/publicat...qualifications.
I’d just point them here. https://www.ag.gov.au/crime/publicat...qualifications.
I'll come up with some practical examples to tease out how these things work. Standby.
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(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.
(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.
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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'.
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.
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.