CASA opinion: Aircraft must be grounded in temps over 40 degrees

[djpil]

Originally Posted by megan

All the Cessna manuals I've seen have a preamble to the performance section which says,My interpretation of that is there is no OAT limit, if there were surely it would be in the limitations section, as some aircraft have.

Agreed, limits per FAR 23.1583 go in the limitations section of the AFM.
Per FAR 23.1587, the range of parameters required for the performance charts/tables are specified in FAR 23.45 - airport altitudes SL to 10,000 ft; temperatures from std to std + 30 deg C. Nothing in the certification or operating rules of the country of origin to suggest that the extremes of those ranges are the limits.

Earlier versions of FAR 23 required the information from SL to 8,000 ft and temperatures from 60 degrees F. below standard to 40 degrees F. above standard. An even earlier version of FAR 23 (applicable to my airplane) did not require AFMs for small airplanes to provide any such performance information.

In this discussion I use a PA28-161 AFM as my example (and some of my comments apply specifically to single pistons below 6,000 lb), relevant statements in its AFM:
"Performance information derived by extrapolation beyond the limits shown on the charts should not be used for flight planning purposes."
It only has data for a paved level runway however it has this statement: “Effects of conditions not considered on the charts must be evaluated by the pilot, such as the effect of soft or grass runway surface …”. CASA's Flight Safety magazine had an article a while back about how to deal with it - from memory, that article was based on https://publicapps.caa.co.uk/docs/33/20130121SSL07.pdf

Originally Posted by kaz3g

There is a flyin to Ian Dickson's and Jenny Houghton's on Anzac Day.

I'll check all of the performance info for my airplane and see if it is OK per CAO 20.7.4 for me to go - subject to the prop shop returning the delicate MT.

[john_tullamarine]

Our regulator is hell bent on wiping out all forms of aviation beyond RPT or the military, who by their size, political power and financial resources are somewhat immune to the imposts of overregulation. For nefarious reasons we stakeholders at the bottom of the pile could never comprehend.

Oh, OK. I thought the previous CASA related comments just suggested that CASA's concern was more along the lines of "be careful out there, chaps ..".

There is no rule that says a pilot has to KNOW exactly what his takeoff distance will be. There is also no rule that says he has to DETERMINE his takeoff distance prior to taking off (or how he must determine it).

I shan't go into laboured discourse .. however, I wouldn't like to go to Court and defend whatever on the basis of your argument ...

So how do we approach that if chart data is the Holy Grail?

One of the problems (as alluded to by djpil) is that the local operational rules (20.7) were set up on the basis of now defunct local certification rules (101.xx). The US rules are a tad different in philosophy and the two don't quite mix comfortably.

On the other hand, one could consult with one's Industry Consultants (at modest expense) to sort out the problem on a specific Type basis. Seriously, though, Ron (rest his good soul) has a few things to answer for ..

Thank goodness I crash so slowly

Thanks be to the US regulator of olde who, with finger in the wind, pontificated that SE stall ought not to exceed 70 mph (61 kt for those who subscribe to that dreadful metrication stuff) on the basis that it seemed to make good sense.


At day's end, there are two important rules ..

(a) Rule 1. Don't crash

(b) Rule 2. Have a good story which will hold up in Court in the face of spirited and enthusiastic seeking of the dollar from your pocket ..

If you are able to observe Rules 1 and 2, the rest is amenable to discussion over a hot coffee.

[kaz3g]

John, the AUSTER Stalls at 26 knots and I was joking

Kaz

[FGD135]

I shan't go into laboured discourse .. however, I wouldn't like to go to Court and defend whatever on the basis of your argument ...

Courts are about laws. There is only one law in this case:

Thou shalt not take off overloaded.

But if you took off with the temperature at 41, when your charts only went to 40 degrees, how are they going to prove that you took off overloaded? They can't use the charts because they are not valid.

[john_tullamarine]

John, the AUSTER Stalls at 26 knots and I was joking

Noted .. a long time since I enjoyed an Auster ... my thoughts are more to the new folks who might be watching the thread .. just part of how I play in the sandpit.

how are they going to prove that you took off overloaded?

The concern is more .. how are you going to prove your operation was in compliance with the regulatory bits and pieces ? A goodly chance of being hung, drawn and quartered I suggest ..

[FGD135]

.. how are you going to prove your operation was in compliance with the regulatory bits and pieces ?

It is they that have to prove it. It is they, bringing the case, after all.

[Bankstown Boy]

It is they that have to prove it. It is they, bringing the case, after all.

No offence intended to you FGD135, but the quaint notion that the courts have some sort of "innocent until proven guilty" basis, is nothing more than wishful thinking.

Even in criminal matters that basis often no longer exists but it does not exist in civil matters at all.

Most law these days is written in strict liability prose and the "safer skies" mob are experts in this black art (everyone has to be good at something)

Simply put, even though they bring the action, you must prove your innocence/compliance.

[FGD135]

No offence intended to you FGD135, but the quaint notion that the courts have some sort of "innocent until proven guilty" basis, is nothing more than wishful thinking.

Bankstown Boy,

You are way off the mark. You seem to be saying that CASA can drag you to court because they THINK you have done something wrong, and you then have to prove otherwise.

That is ridiculous. Have a look at this:

Importantly, however, strict liability does not reverse the burden of proof, and there are no provisions in any CASA legislation (current or proposed) that do so. ‘Every element of a strict liability offence must be proven by the prosecutor, and proven beyond a reasonable doubt. It is not and has never been the case that the defendant must prove that they did not commit the offence.’

That quote was taken from this document:

Strictly liable, fairly enforced | Flight Safety Australia


But of course, if you have gone off the end of the runway, and this is the reason you are in court, then the proof is self-evident and it will be nigh on impossible for you to prove otherwise! All of this just illustrates the simple point that JT made:

(a) Rule 1. Don't crash

[megan]

You are way off the mark. You seem to be saying that CASA can drag you to court because they THINK you have done something wrong, and you then have to prove otherwise.

That is ridiculous.

I would think otherwise. Ask John Quadrio, AAT rejected the CASA case, but he never got his licence back. Imposition of strict liability is a departure from a fundamental protection of the criminal law. Strict liability may be justified where it is difficult to prosecute fault provisions, to overcome ‘knowledge of law’ issues, where a physical element incorporates a reference to a legislative provision, where it is necessary to protect the general revenue, or to ensure the integrity of a regulatory regime. Which is quite at odds with the thrust of Dr Jonathan Aleck's article. Since he is a CASA employee it's just a puff piece.

[Bankstown Boy]

My take on it all?

There are those that believe in the courts and the judicial system

And

There are those who have experienced the courts and the judicial system

From my substantial personal and professional experience, I remain convinced that these two groups are mutually exclusive.

FGD135, I mean you no harm nor insult but if it is your believe that an article by a CASA employee will protect you, then nothing I can say or do will sway your mind.

To put the sword to Aleck's aericle, most of our new and 'improved' legislation is written along the lines of (and this is paraphrasing)

A person in control of an aircraft [doing the thing] commits an offence, unless they [add numerous relevant defences]

An offence of section [] is of strict liability
Penalty units []


The way that rule is written, the way the regulator will prosecute it, and the way the court will enforce it, is - if you did [the thing] then you are guilty, unless you can prove you did [the relevant defence]

Sadly, that's the real world.

Even sadder, many of those "things" don't involve extremes like crashing and stuff, they are everyday activities.

[kaz3g]

In the criminal jurisdiction, the prosecution does not have to prove your intention to do the act but it does have to prove each of the elements of the offence beyond reasonable doubt.

The standard of proof in civil matters is on the balance of probabilities...ie more likely than not.

Kaz

[Lead Balloon]

Every element of a strict liability offence must be proven by the prosecutor, and proven beyond a reasonable doubt.

And most strict liability offences in the civil aviation law have a grand total of one element.

Prosecution is usually the least of your worries. If you're not a complete recidivist you're likely to end up with a discharge without conviction, years after the event.

Administrative decisions are a far more efficient weapon of torture - sorry - safety tool.

[Squawk7700]

And most strict liability offences in the civil aviation law have a grand total of one element.

Touché!

I'm sure many don't realise this....

For the offence of low flying, you only need to have been caught low flying... that's 1 point of proof. For "theft," there are a number of proof points, including your Actus Reus and Mens Rea, not to mention your intention to permanently deprive.

It's far more simple to pin someone for an aviation offence due to strict liability. It's a thread and a half of discussion on its own.

[kaz3g]

Originally Posted by Squawk7700

Touché!

I'm sure many don't realise this....

For the offence of low flying, you only need to have been caught low flying... that's 1 point of proof. For "theft," there are a number of proof points, including your Actus Reus and Mens Rea, not to mention your intention to permanently deprive.

It's far more simple to pin someone for an aviation offence due to strict liability. It's a thread and a half of discussion on its own.

"low" and "flying" are at least two points of proof and implicitly suggest several more.

Kaz

[Lead Balloon]

(4) The pilot in command of an aircraft must not allow the aircraft to take off if its gross weight exceeds its maximum take‑off weight or, if a lesser weight determined in accordance with a direction under subregulation (2) is applicable to the take‑off, that lesser weight.

Penalty: 50 penalty units.

(5) The pilot in command of an aircraft must not allow the aircraft to take off if its gross weight exceeds, by more than the weight of fuel that would normally be used in flying to its next landing place or planned alternative aerodrome, its maximum landing weight or, if a lesser weight determined in accordance with a direction under subregulation (2) is applicable to the landing at that place or aerodrome, that lesser weight.

Penalty: 50 penalty units.

(6) The pilot in command of an aircraft, must not land the aircraft if its gross weight exceeds its maximum landing weight or, if a lesser weight determined in accordance with a direction under subregulation (2) is applicable to the landing, that lesser weight.

Penalty: 50 penalty units.

(7) CASA may, for the purpose of ensuring the safety of air navigation, give directions with respect to the method of loading of persons and goods (including fuel) on aircraft.

(7A) A person must not contravene a direction under subregulation (7).

Penalty: 50 penalty units.

(8) The pilot in command of an aircraft must not allow the aircraft to take off or land if a direction given under this regulation, about the loading of the aircraft has not been complied with.

Penalty: 50 penalty units.

(9) The pilot in command must ensure that the load of an aircraft throughout a flight shall be so distributed that the centre of gravity of the aircraft falls within the limitations specified in its certificate of airworthiness or its flight manual.

Penalty: 50 penalty units.

(10) A direction given under this regulation does not have effect in relation to a person until it has been served on the person.

(12) An offence against subregulation (2A), (4), (5), (6), (7A), (8) or (9) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(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).

Simple.

[FGD135]

The way that rule is written, the way the regulator will prosecute it, and the way the court will enforce it, is - if you did [the thing] then you are guilty, unless you can prove you did [the relevant defence]

Sadly, that's the real world.

Bankstown Boy,

I believe you are getting a few things confused. If CASA are dragging you to court, then they will *already* have the proof and therefore, a high confidence the conviction will succeed.

There is no way they would take you to court with less. You seem to be saying they would take you to court with just an allegation.

Once in court, you can defend yourself. Is it this stage where you believe you are under the assumption that you are "guilty until proven innocent", and thus have to now prove you are innocent?

[Lead Balloon]

It's the CDPP that "takes you to court" to prosecute you, not CASA.

Unfortunately for the hapless defendant, the CDPP is usually initially enthralled by the mystique of aviation safety. Fortunately for the hapless defendant these prosecutions usually lead nowhere, unless you happen to be someone who's carried dangerous goods on an RPT aircraft..

[Derfred]

I find it interesting to compare "strict liability" to how sharia law is implemented in some countries.

Such as, (to paraphrase according to CASA): "A woman must not engage in sexual activity outside of marriage. This is a clause of strict liability".

So if a woman is raped, and confesses, under strict liability she is guilty of the offence. Intent does not come into it. She is automatically guilty. All she can hope for now is empathy from the courts, she has no "legal" defense.

That's "strict liability" for you.

To put it back on topic, if you take off at 42C (and you know it's safe because whatever), but it's outside of your charts, and you encounter unpredictable windshear on departure that causes an accident, where is the burden of proof that you caused the accident?

CASA could claim the temperature caused the accident. Yes the burden of proof is on CASA that you took of at 42C, but that would be easy to prove, and as it's a clause of strict liability you are now liable. The burden of proof of the windshear is now on you. So yes, you are now guilty unless you can prove yourself innocent, which may not be easy.

Disclaimer: not a lawyer. And yes LB, of course the DPP takes on all prosecutions, as always, but they do so on behalf of CASA, using CASA's evidence, CASA's regs and CASA's desire to prosecute.

[thorn bird]

All these arguments lead me to the conclusion that whoever wrote

"The law is for everyone, justice is for them that can afford it"

Is profoundly correct.

If CAsA was in any way a "Model Litigant" and in many cases as we have seen
from bitter experience a "Moral Litigant" perhaps that statement would be less poignant.

[Horatio Leafblower]

Kaz

In the criminal jurisdiction, the prosecution does not have to prove your intention to do the act

Quite wrong. normal criminal law requires both a criminal act and a criminal mind - acrus reus and mens rea - not only the doing of the thing but an intention to do so.

In a world full of administrative rules, very few of us intend to break the law. That's why they make the rules strict liability.