PIC command authority
 

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

CASR 91.215 might be what you're after.

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:(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.)

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

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

This is why lawyers make bad pilots…

Conversely its also why pilots make bad lawyers.

How far for the defence to be invoked
 

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:

​​​​​​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)

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.

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)”

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.

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.

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.

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.

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

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"?

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.

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.

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?

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.

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.

Here is the US version for reference...

https://www.ecfr.gov/current/title-1...A/section-91.3

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.

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.

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.

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.

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?

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?

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...)

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.

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.)

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.

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.
​​​

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

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.

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.)

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.

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....78504540fd.jpg
https://cimg9.ibsrv.net/gimg/pprune....2882d7b949.jpg

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

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.

OMG Clinton. Did you just out yourself as "Lead Balloon"? :ooh: