PIC command authority

[Window heat]

Originally Posted by Clinton McKenzie

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]

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]

Originally Posted by BuzzBox

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]

Originally Posted by Clinton McKenzie

…
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.

Originally Posted by Clinton McKenzie

…
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.

Originally Posted by Clinton McKenzie

…
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.

Originally Posted by Clinton McKenzie

…
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.

Originally Posted by Clinton McKenzie

…
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.

Originally Posted by 43Inches

... 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.

Originally Posted by 43Inches

…
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]

Originally Posted by MickG0105

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]

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]

Originally Posted by 43Inches

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]

Originally Posted by 43Inches

...
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]

Originally Posted by 43Inches

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 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]

Originally Posted by 43Inches

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]

Originally Posted by 43Inches

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]

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]

Originally Posted by wnafly

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]

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]

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

[MickG0105]

Originally Posted by KRviator

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]

Originally Posted by Clinton McKenzie

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 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.

Originally Posted by Clinton McKenzie

...
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]

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]

Thanks Clinton. A bit to digest.

[Clinton McKenzie]

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