PIC command authority

[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

[KRviator]

CASR 91.215 might be what you're after.

[Lead Balloon]

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]

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

[Lead Balloon]

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]

This is why lawyers make bad pilots…

[Lookleft]

Conversely its also why pilots make bad lawyers.

[GaryGnu]

How far for the defence to be invoked

Originally Posted by Lookleft

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]

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]

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]

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]

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

As mentioned, 91.690 says the PIC must report any contravention of CASRs in the course of handling an emergency, to CASA in "the approved form" within 2 days. It does not imply authorisation to contravene or vary anything however it does contain the wording "the emergency requires the pilot flying the aircraft to take action that involves a contravention of a provision of these Regulations..."

I take it from that CASA is at least aware that every situation must be assessed on its merits and that the CASRs cannot possibly cover every situation (although I understand that they've given it a red hot go over the last 30 years), therefore it is possible that in the act of dealing with an emergency some rules may be broken. They just want to know about it. At least that is my glass half full interpretation.

There is also 91.090 and 91.095 which deal with airspeed limits of the MOS and operating the aircraft within the AFM parameters, neither of which imply that these do not apply in the case of an emergency. I imagine that overweight landings would fall under the latter, if the AFM explicitly outlines overweight landing procedures for your type.

[donpizmeov]

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

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.

[Lead Balloon]

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.

[Icarus2001]

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

[BuzzBox]

Originally Posted by Lead Balloon

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]

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.

[43Inches]

Originally Posted by donpizmeov

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]

Originally Posted by Lead Balloon

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]

Originally Posted by 43Inches

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.