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Karen Casey wins court case.

Old 17th May 2015, 23:15
  #21 (permalink)  
 
Join Date: Dec 2005
Location: Oz
Posts: 468
As an entertained witness to the nearly 3 decades of the "Categorisation of Operations" by the regulator in its various (dis)guises let me add my simplistic (read non-legal) view.

Pilot and Co-Pilot were employed, paid and managed by Pel-Air. They are required to operate an aircraft and are "crew".

Care-flight was tasked by ?? to medevac a patient. Care-flight provided the medical staff (Doctor/Nurse) employed, paid and managed by Care-flight to travel in the aircraft and provide care for the patient en-route. Patient family member also accompanied patient.

Care-flight hire Pel-Air to provide an aircraft and crew (Pilot/Co-Pilot) to conduct the given task.

None of the Care-flight contingent are required to operate the aircraft, they are however required to operate any medical equipment they have brought with them onto the aircraft.

As I see it, Pilot and Co-pilot are the only "crew", the rest can only be 'passengers'. How the hirer of the aircraft utilises that aircraft/crew is irrelevant to the flight categorisation (in a regulatory sense)

I see the flight categorisation as "Charter" and airwork doesn't even come into it.

Am I wrong?

Tipsy
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Old 18th May 2015, 01:52
  #22 (permalink)  
 
Join Date: Nov 2000
Location: Salt Lake City Utah
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Depends on what the term “ambulance functions” means in CAR 206(1)(a)(vii).

Although the discussion is academic, because the new, simple, harmonised, outcomes-based classification of operations scheme will come into effect in 1998, it does raise the question as to how operations for the purposes of “ambulance functions” and “any other purpose that is substantially similar to” ambulance functions can be carried out without passengers. Operations for those purposes are aerial work: CAR 206(1)(a)(vii) and (ix).

If “ambulance functions” involve patients, and patients are, by definition, passengers, it follows that at least that kind of AWK can, from a regulatory perspective, be carried out with passengers.

Doesn’t mean it has to be done only under an AWK AOC, but I don’t see why it can’t be done under an AWK AOC.

Of course, it may be that the transport of patients in other than an emergency is not an operation for the purposes of “ambulance functions” or “any other purpose that is substantially similar to” ambulance functions.

But as I say, it’s all academic come 1998.
Creampuff is offline  
Old 18th May 2015, 06:19
  #23 (permalink)  
 
Join Date: Jul 2007
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Creamie,

When will it be 1998 ?

Are we there yet dad?

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Old 18th May 2015, 07:37
  #24 (permalink)  
 
Join Date: Dec 2005
Location: Oz
Posts: 468
Creamie

I can accept that pure "ambulance functions" are airwork. That is the operations of dedicated aircraft converted to primarily "ambulance function" such as those aircraft owned, operated and crewed by the the likes of the RFDS. They are air ambulances first and foremost. There are others of course around the country.

I find it difficult though to accept that an aircraft and operating crew hired from a supplier and it matters nought what the hirer wants to do with the aircraft (within the operating limits of the aircraft/crew) can be anything else but charter. It could be a sit down have a champers or 2 passenger flight or it could be to transfer a sick passenger (sitting up or lying down does not matter) and attendants between A and B. I do not think that is airwork (or ambulance function), charter yes.

I see a definite difference between a dedicated "air ambulance' operation and one where an aircraft is used to move passengers including a sick or injured one.

Perhaps I am as confused as the regulator as they try to cover every possible scenario or circumstance with a regulation (and attendant "penalty points").

Roll on 1998, it can't come soon enough.

Tipsy.
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Old 18th May 2015, 08:56
  #25 (permalink)  
 
Join Date: Nov 2000
Location: Salt Lake City Utah
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Let’s leave the classification of the operation question aside (BTW: I agree that the operation in which NGA was engaged was charter, and it appears that the parties to the litigation - including, presumably, the insurers - agreed) and focus on the distinction between POB who are crew and those who are not.

The spaghetti starts in the Dictionary in the 1998 regulations. A “passenger” is defined as a person who, among other characteristics, is not “a member of the crew of the aircraft”. The Dictionary doesn’t define “crew” or “member of the crew” or “crew member”, but it does define “cabin crew member”.

The term “cabin crew member” is defined in the Dictionary in the 1998 regulations to mean a “crew member, other than a flight crew member, who performs, in the interests of the safety of the aircraft’s passengers, duties assigned by the operator or the pilot in command of the aircraft”.

The Dictionary in the 1998 regulations doesn’t define “flight crew member”.

However, the 1988 regulations define “crew member” and “flight crew member”.

The 1988 regulations define “crew member” to mean “a person assigned by an operator for duty on an aircraft during flight time and any reference to ‘crew’ has a corresponding meaning.”

The 1988 regulations define “flight crew member” to mean “a licensed crew member charged with duties essential to the operation of an aircraft during flight time, and any reference to ‘flight crew’ has a corresponding meaning.”

So it seems that, on the current definitions, the question whether a person other than “a licensed crew member” i.e. someone with a licence and “charged with duties essential to the operation of an aircraft during flight time” - is a passenger, depends on whether the person has nonetheless been “assigned by [the] operator for duty on [the] aircraft during flight time”. It seems there’s a difference between non-licensed crew who are ‘just crew’, and non-licensed crew who are “cabin crew”: the latter perform, in the interests of safety of the aircraft’s passengers, duties assigned by the operator or PIC of the aircraft, whereas non-licensed ‘just crew’ are apparently assigned by the operator for ‘other’ duties.

Meanwhile, the 1988 regulations still have a definition of “operating crew”, which means any “person who: (a) is on board an aircraft with the consent of the operator of the aircraft; and (b) has duties in relation to the flying or safety of the aircraft.” Before the definition of “passenger” was repealed in the 1988 regulations, a passenger used to be defined as every POB other than “operating crew”. However, the term “operating crew” is still used in and has some important consequences in the 1988 regulations.

Clear so far?

The characterisation of someone as a passenger now all now seems to boil down to the question whether or not the person has been “assigned by an operator for duty on an aircraft during flight time”. In other words, even if someone is e.g. performing duties in the interests of the safety of the aircraft’s passengers, the person will still be a passenger if the operator of the aircraft did not assign that person to duty on the aircraft.

Hence, on the current definitions it would appear doctors and nurses tending to patients on ‘medivac flights’ are passengers, unless they were assigned to that duty by the operator of the aircraft.

I don’t know whether I can take much more of this simplification.
Creampuff is offline  
Old 18th May 2015, 09:23
  #26 (permalink)  
 
Join Date: Jul 2010
Location: sydney
Posts: 1,391
Creamie,
quite a few years ago we had a job to pick up a baby seal.
All was well until half way back the damn thing got out of the sack it was held in, started biting the ankles of anyone who went near it and finished up sitting on a back seat looking out the window. Now the flight started as freight, therefore airwork, given the freight was now sitting on a back seat looking out the window, should we have upgraded to Charter?
thorn bird is offline  
Old 18th May 2015, 15:40
  #27 (permalink)  
 
Join Date: Jul 2001
Location: Australia
Posts: 4,942
Folks,
One could almost come to the conclusion that, under certain circumstances, cabin crew are passengers, something I have long suspected, especially after the sun has gone down.
Tootle pip!!
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Old 19th May 2015, 06:57
  #28 (permalink)  
 
Join Date: Jun 2003
Location: Australia
Posts: 424
Creampuff.
I follow your argument but where does this leave pax who are assigned an overwing exit? Are they "assigned a duty by the operator"?

Wunwing
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Old 19th May 2015, 07:24
  #29 (permalink)  
 
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Location: Salt Lake City Utah
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Glad you followed it. I didn’t!

I don’t know whether the process of filtering persons for age, physical capacity, sobriety, comprehension of instructions and letting them ‘opt out’ turns persons, who are expected to operate emergency exits on command from the PIC, into persons “assigned by [the] operator for duty on [the] aircraft”. Maybe they’re just volunteering to help out …

What would happen if all people with tickets to fly on an aircraft opted out of volunteering to help out in an exit row? Would the operator be obliged to leave the exit rows empty? Would the operator be obliged to “assign” more people for “duty on the aircraft” to operate the emergency exits?
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Old 19th May 2015, 07:47
  #30 (permalink)  
 
Join Date: Jun 2003
Location: Australia
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Creampuff.
What I followed was the complexity of what you wrote. I certainly don't claim to have an answer from what you wrote.

As far as to what happens if no one "volunteers" for the overwing exits, I expect either the operator would have to find crew for the positions or pax numbers would have to be reduced to a number specified for the front and rear doors only. I have never seen that figure, as all MEL/DDGs that I have operated under assume only one exit blocked out and a comensurate reduced pax number to meet the 90 second evacuaton ruleThat is why I query if in reality the pax are assigned a duty. If they weren't there the flight goes no where.

Another one to consider. If a test engineer is assigned a duty on a pax aircraft and is operating onboard approved testing systems are they crew or pax?

Wunwing
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Old 19th May 2015, 07:48
  #31 (permalink)  
 
Join Date: Sep 2008
Location: Land Down Under
Posts: 15
seems like a lot of guess work going on here. check this out for how a court found on a similar passenger vs crew matter:


When does the Civil Aviation (Carriers? Liability) Act 1967 (NSW) apply? - Carter Newell
http://www.cgw.com.au/publication/ai...lity-update-2/ - see "who is a passenger"


Was Edwards a passenger?
Absent a definition of 'passenger´ in the CACLA, the Court took guidance from leading international and local cases5 and applied the principles laid down in those cases to the facts of this matter.
In finding Edwards to have been 'an essential part of the crew', and therefore not a passenger for the purpose of the CACLA, the Court looked to the contract for aerial services as between Precision and Endeavour noting the following critical features:

  • Two Endeavour employees were supplied to Precision as an 'inspector' and 'observer';
  • The observer was to 'assist the pilot by providing advance warning of approaching hazards, tracking flight developments to determine changing risks and recording the condition of the powerline';6 and
  • At the time of the accident, and in accordance with the contract, Edwards fulfilled the role of observer.
The Court found Edwards' role as observer was central to the pilot's conduct of the aerial inspections of the overhead lines and the pilot had relied on Edwards to assist with the navigation of the aircraft as well as to provide advance warning of hazards.

Last edited by Tomahawk38; 19th May 2015 at 08:01. Reason: added link to CGW article
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Old 19th May 2015, 07:50
  #32 (permalink)  
 
Join Date: Sep 2008
Location: Land Down Under
Posts: 15
Given the above, I would assume the nurse would be accepted as a passenger as she was not critical for the flight operation, nor did she affect the navigation or control of the aircraft.
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Old 19th May 2015, 09:18
  #33 (permalink)  
 
Join Date: Nov 2000
Location: Salt Lake City Utah
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There isn't a definition of "passenger" in the carriers liability legislation, but there is in the civil aviation regulations.

The fact that there is uncertainty about these questions within and between the different pieces of legislation, notwithstanding decades of "simplification" and thousands of pages of new regulations and other rules, is the problem.

It's still "guess work".

I'll demonstrate: What if all the patients are mentally unstable and the nurse's job is to keep them under control so they don't try to take control of the aircraft or open the emergency exits? Sounds to me like a function that's essential to the safety of the aircraft, whether the nurse has been "assigned for duty" by the operator or someone else.

I don't know the answer. But that's the point.
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