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Police observers - passengers or crew?

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Old 2nd Sep 2001, 21:39
  #21 (permalink)  
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fish

Vsf,

Missed your reply before editing, so I'm in the dark as to your post. All points of view are valid.

sting load,

Thanks for that. Seems they are crew unless they are about to cost someone a lot of money. It is true that the CAA regard th police observer as pax, simply because thy are not licensed. That really has no bearing on the case, as, as you point out, they are the sole reason for the thing getting airborne at all.

Ally,

Thanks for the input. Indeed some aircraft are not owned and operated by the police, and that is how, in the Strathclyde case, it was decided that the Warsaw Convention did apply because the aircraft was hired on an ad hoc basis from a commercial operator using a commercial AOC. In the EMASU case, the same argument seems somewhat strained, as G-EMAU was owned by the three constabularies and operated under a PAOC.

As you say, it will probably have to be dragged through the courts, taking time and leaving the injured party with no income, already three years down the line.

Natural justice says to me that the man was a member of the crew, and should be compensated as such.
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Old 2nd Sep 2001, 23:44
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Ark,
I'm not sure which side of the legal fence these cases would fall, but, you can bet your bottom dollar that the insurance company will dig-in until courts sort it out.
As far as I am aware the observers are not treated as crew because of the general reluctance of Constabularies to submit their men to licensing limitations, as the pilots are (FTL) and therefore lose their availability for other tasks at any time day or night. The CAA and the Home Office do not see eye to eye on this. Hope this helps some.

FLIR.
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Old 3rd Sep 2001, 00:53
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I'd be surprised if there's a clear-cut answer to this one, wouldn't it depend on a lot of variables? eg Who owns the helicopter? Who operates it? etc.
Why can't the policeman/his widow claim against his police force just as if he was injured in any other accident a work?

Please don't take this the wrong way Ark Royal but I think it may be asking quite a lot from FL to answer a compicated question like this as a freebie on the Forum.
I think the best advice to give the policeman/the family is to get their solicitors (or Union solicitors) to go to Flying Lawyer for an official opinion. Many people don't realise you can ask your solicitor to use a particular barrister. You can. If it was me, I know which barrister I'd ask for.
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Old 3rd Sep 2001, 14:01
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JAR: 'Crewmember' means a person assigned to perform duty in an aircraft during flight time.
Air Navigation(Investigation of Air Accidents...) Regulations 1986: 'Crew' includes every person employed or engaged in an aircraft in flight on the business of the aircraft.
ANO: 'Crew' means a member of the flight crew....or a cabin attendant.

A Police Observer is a 'CAA Agreed Passenger'. With a CAA Agreed Passenger on board, various exemptions to normal ANO/CAT regulations, especially those regarding Low Flying, are given.
But of course, the Obs is a pax, so not subject to FTL.
So who's kidding who?
Flying Lawyer, any comments please?

[ 03 September 2001: Message edited by: Multp ]
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Old 3rd Sep 2001, 18:46
  #25 (permalink)  
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A simple test is what a jury will apply, I think. Is the person in the aircraft to do a job while it flys? Is that job part of why it is flying?

It is absurd to consider the observer a passenger, and no jury could believe otherwise. Furthermore, I challange the other observers (those still alive and working) to simply stop doing whatever it is they do while flying, take out a newspaper and wait arrival, if they are considered passengers! That might hasten the decision a bit.
 
Old 3rd Sep 2001, 19:39
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I asked the very same question about 12 months ago and got just about the same replies. In the eyes of everyone but those who may have to pay out in the case of the unthinkable happening, we are crew. It obviously suits the police authorities to remain outside the FLT when it comes to their officers and the CAA have pandered to the police authorities wishes by introducing the CAA Agreed Pax title. It's a keep your head below the parapet reaction which should be changed.
As a police observer my self I have taken the bull by the horns and submitted an official request to my local federation office for this to be entered into the national agenda. I wait with bated breath, not that I'll hold it for too long.
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Old 4th Sep 2001, 00:09
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When I used to work for Aeromega, a privately owned company helicopter was used to ferry around the company directors. This helicopter was flown by a pilot as rostered by Aeromega using their AOC. These flights were deemed to be private flights and as such had no pilot FTL limitations placed on them (12/13 hours a day at times!) and hence ‘private’ written in the tech log. It was ruled by the CAA that exactly the same conditions applied when the company helicopter was U/S and a replacement helicopter from Aeromega was being used, so even when an Aeromega helicopter and an Aeromega pilot were being used to ferry these directors around, it was a private flight and they were not deemed to be pax.


This would seem to be exactly the case at East Mids ie; policemen being flown around in their own helicopter by a third party contracted pilot. However in order to gain the 12 or so easements from the ANO the Chief Constable has to hold a PAOC and it would seem that here the bobbies make a transition from private pax to commercial CAA agreed pax and hence the required entries into the tech log for CofG, AUW etc.

I suspect I have argued both sides of the coin here, all of which is based on fact and I have to come to the very uncomfortable private conclusion that the bobbies are indeed pax and not crew even though without them being on board there is little point in getting airborne. I hope that I am wrong………
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Old 4th Sep 2001, 02:27
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Purple Pilot,
I think your analogy is not airtight. The pax in the company flights were just that, pax. The purpose of the flight was to take them somewhere. If the police observers were being transported to another site, the analogy is held, but in our case, the observers are part of the flying team, trained and performing an airborne task.

Were the gunners on a Lancaster passengers? I think not!
 
Old 4th Sep 2001, 13:48
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Red face

In the UK Police Air Observers undergo some sort of formal training, which includes a degree of Airmanship, PofF, aircraft tech, Met, Nav and CRM, in addition to specialist skills training in using the role equipment. Most forces then award an Observer's brevet and the newly qualified Observer serves a probationary period.
All this for a 'passenger'?
And is your AWACs Sensor Operator/ WSO etc in the RAF a passenger?
I say again, who's kidding?
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Old 4th Sep 2001, 15:09
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Multp is absolutely spot on. Under JAR non-trained aircrew personnel will be regarded as pax, but a trained and line-checked crew with all the time and paperwork this entails are regarded as crew, this applies both to police and EMS aircrew. It all depends on the operator and/or the agency involved.
Apart from that I don't know the legal implications involved, perhaps the FL could spare us a moment of his time?
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Old 4th Sep 2001, 16:06
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Question

I would have thought they were in the same position, legally, as the civillian SAR crewmen/W. Ops (who are in fact regarded as crew by their company, though with less stringent FTL scheme).
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Old 4th Sep 2001, 21:01
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fish

Thanks everybody, some good stuff coming through here.

Hoverman,

I wasn't really asking FL for a free consultation, just maybe a view, and what I was really after was the discussion I have provoked.

The Lawyers for the unfortunate observer are looking for as many angles as possible to lever away at this one to prove crew status.

Keep 'em coming.
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Old 4th Sep 2001, 23:41
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I would like to thank ArkRoyal for starting this debate, the replies are of great interest to me as I was the surviving observer from the G-EMAU crash.

I cannot detail the case as it is sub judice, suffice to say that the fat cats are making lots of money.

PAX or aircrew is a play on words depending on wether your client is facing a hefty payout. I agree that in the strictest terms of the definition, I was a CAA PAX. However how many PAX are expected to undergo line checks, attend CRM courses, wear military style safety equipment, read maps, run a comms system et al, the list goes on.

G-EMAU was owned by three forces, not leased so I believed that we were exempt from the Warsaw convention on these grounds alone. However, very clever lawyers are pushing that the consortium agreement covering the use of the aircraft constituted a contract so technically the aircraft was leased to Warwickshire on the night of the crash. Yet another play on words. How can you lease something you own?

For those of you that are affected directly, CHECK AND DOUBLE CHECK, THAT YOU ARE CORRECTLY INSURED.

This matter will no doubt go to the High Court for a ruling, for me I want to put the whole incident to bed as three years is approaching.

[ 04 September 2001: Message edited by: 442 ]
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Old 5th Sep 2001, 02:03
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442
Sorry to hear about your accident, and hope that it all ends well for you. I know from experience that these things can take a very long time, and it gets desperate at times but it's all worthwhile if you get the right result in the end.
I was concerned about your reference to the 'fat cats' making lots of money. I was unhappy until I had a barrister I was confident in - and my condidence wasn't misplaced.
Mine wasn't an aviation case - if it was, I wouldn't settle for anyone except Flying Lawyer. There seems to be nobody better in aviation cases, and you have the right to insist your solicitors use a barrister of your choice.
Good Luck.
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Old 6th Sep 2001, 12:35
  #35 (permalink)  
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442

Thanks for your kind words.

Purple, I like your logic, but am dismayed by it, as it is the same kind of weasley argument which will be used by the insurer's legal team.

Letsby,

You said: 'What benefits are there for a Police Observer to be called a crewman instead of a passenger? His personal life insurance premiums would increase exponentially to possibly unaffordable levels. He would be subject to an FTL, which is something ACPO would never agree to. He would need to pass two stringent medicals a year, he would need to pass two CAA type checks per year (instead of one) and he could not be represented by the PF as he would be subject to the strict rules of the CAA.'

Hardly a very onerous set of circumstances compared to 442's ordeal. I hope you never find yourself out of work and disabled for want of a few quid extra on your life insurance (BTW as a police pilot, my premiums were not loaded), and a few extra check rides.

A police helo mission is tasked by a police control room, directed by a police observer, the sensors are operated by a police observer. Stark common sense says these guys (and gals) are acting in the capacity of crew members and not as passengers. The CAA called them pax for licensing reasons, not as a definition of their role.

English law is supposedly based on common sense and what a 'reasonable person' would interprate.

If this is so, then 442 will(eventually) win this one. I for one will be geared up to lobby my MP and anyone else required if common sense does not prevail. I hope it does!

edited for poor memory and tiredness!

[ 06 September 2001: Message edited by: Arkroyal ]
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Old 8th Sep 2001, 21:55
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I've just seen this thread.
Although I'm happy to answer general legal questions on Rotorheads (if I can - and within reason!), it wouldn't be proper for me to do so abotu a specific case when there are already lawyers dealing with it. It would certainly irritate me if a client said "Well, there's this chap on the internet who says ..........".

Arky:
Check your e-mail.
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Old 8th Sep 2001, 23:12
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FL,
The special irritant would be if the guy on the internet was a better lawyer, too.

The problem with medicine and law is the errant belief that they are "professionals" and so above second guessing, and second opinions. It irks me that good pilots can have honest disagreements on the net, and good engineers can also disagree, but lawyers and doctors can't.

What bull! Pilots get blamed, doctors and lawyers get Wednesdays off for golf.
 
Old 8th Sep 2001, 23:39
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442 my kindest regards & best wishes.

As for my two pennies worth to this debate.

I believe the officers who fly with me to be crew. The aircraft cannot act in the role it got airbourne for without them.

I have however seen the Police Observers take either side. The one which best suits their needs at that time. Thankfully not often.

ACPO's are very reluctant due to the FTL scheme.

Now I stand to be corrected, but isn't the FTL scheme for a crewman slightly less stringent than for Pilots?

We fly as crews, in everything but the letter of the law we are crews.... we should be crews!
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Old 9th Sep 2001, 17:20
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Nick
With great respect (as we lawyers always say - but, in your case, is sincerely meant) you've missed the point of my post. The fault is mine; I should have expressed myself more clearly.

(1) "The special irritant would be if the guy on the internet was a better lawyer, too."
Not at all, the opinion of a better lawyer is always welcome – provided he has all the relevant facts before expressing his opinion. What is irritating is the lawyer who expresses an opinion when he does not have all the relevant facts which have to be taken into consideration. It is irritating for two reasons:
Firstly, it may unsettle the lay-client who has been given legal advice which, although correct, is not the opinion which he would like to have received. Human nature being what it is, the lay-client will naturally be attracted by the opinion which is more pleasing.
Secondly because, in my opinion, a lawyer who expresses a view about a particular case involving real people with real worries and real distress, when he does not have all the relevant facts, is irresponsible.
(I used to do it frequently as a law student, and I doubt if things have changed much. 'A little learning is a dangerous thing .......... etc!)

(2) "The problem with medicine and law is the errant belief that they are "professionals" and so above second guessing, and second opinions."
There are many 'problems' with the law, the legal system and lawyers but this is not one of them, at least in the UK – I can't comment on the US.
We are members of a profession, but certainly not above second opinions. I referred above to the 'lay-client'. In the UK, lawyers are divided into Solicitors and Barristers. (Similar, but not without exceptions, to GP's/Specialist Consultants in the medical world.) The lay-client goes to a solicitor who, in appropriate cases, refers the case to a barrister for a second opinion.
As a barrister specialising in aviation cases, all my work is referral. If the case is particularly difficult or unusual, I advise the solicitor to obtain the opinion of a second barrister. Barristers often seek a second opinion informally if the point of law is difficult or unusual – we have our equivalent of the crew-room! But, whichever method is used, we ensure that the second lawyer has all the relevant facts, without which the opinion is of little or no value.
I am often asked to give a second opinion in aviation matters where another barrister has already advised. If I disagree with the first barrister, I have no hesitation in saying so.
I have also for many years been involved in Professional Conduct matters involving barristers against whom a complaint has been made. Their conduct of the case is reviewed and, if appropriate, they are subject to full disciplinary proceedings. The Bar's professional conduct/disciplinary process has the reputation of being the toughest of all the professions – and so it should be, in my view.

(3) "It irks me that good pilots can have honest disagreements on the net, and good engineers can also disagree, but lawyers and doctors can't."
Good lawyers often have honest disagreements, even on PPRuNe – you've obviously missed the discussions on various legal topics over the years. But, they have been on general points, not specific cases for the reasons I've explained.
(4) "What bull! Pilots get blamed, doctors and lawyers get Wednesdays off for golf."
Oh dear, Nick. Your contributions to Rotorheads are amongst the most valuable, but you're letting your prejudices show on this occasion!


In conclusion, much obviously depends upon the individual case. As must be clear by now, the answer to the question posed by ArkRoyal is by no means straight-forward. No competent and/or responsible lawyer would attempt to answer it without obtaining a great deal of additional information.

[Edit]
I hope the significance of the last line of my earlier post wasn't lost on you. I know it won't be lost on Ark Royal!


[ 09 September 2001: Message edited by: Flying Lawyer ]
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Old 9th Sep 2001, 17:37
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Smile

Define the phrase "What a shame!".

Perhaps it could be restated as " a missed opportunity..." such as a Stretched 747 carrying legal beagles to Hawaii crashing full chat into the Pacific Ocean....with one empty seat!

Just joking,beagles!
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