Police observers - passengers or crew?
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Flying Lawyer,
OK, I apologize, because you are as usual quite right. I took cheap fun at that issue (once in a deposition where I was commenting about "pilot error" I asked the questioner what he did about "lawyer error" and I was also rebuked!)
I think US standards of professional review for Law are quite a bit less rigorous than what you describe, and I'll bet the same for medicine. Thanks for the snap back!
[ 09 September 2001: Message edited by: Nick Lappos ]
OK, I apologize, because you are as usual quite right. I took cheap fun at that issue (once in a deposition where I was commenting about "pilot error" I asked the questioner what he did about "lawyer error" and I was also rebuked!)
I think US standards of professional review for Law are quite a bit less rigorous than what you describe, and I'll bet the same for medicine. Thanks for the snap back!
[ 09 September 2001: Message edited by: Nick Lappos ]
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Nick
I was very pleased to read you graciously withdrawing your earlier remarks.
You're probably not aware, but Flying Lawyer is the UK's leading aviation lawyer. His standing in the industry is as high in his field as yours is in yours. I also know (thankfully not from personal experience!) that he helps many people informally and discreetly.
The exchange was useful though - I was never quite sure what the difference was between barristers and solicitors. Now I know!
I was very pleased to read you graciously withdrawing your earlier remarks.
You're probably not aware, but Flying Lawyer is the UK's leading aviation lawyer. His standing in the industry is as high in his field as yours is in yours. I also know (thankfully not from personal experience!) that he helps many people informally and discreetly.
The exchange was useful though - I was never quite sure what the difference was between barristers and solicitors. Now I know!
Just a numbered other
Flying Lawyer
Thanks for your interest in this case, your posts and e-mail.I understand fully the constraints posed by professional ethics.
Seems to me that we, the men on the Clapham omnibus, ('cept for purple pitot, who missed it in Tooting!
) agree that 442 was a crewmember deserving to be treated as such by the insurers and courts.
Common sense will prevail in the end, I feel sure. I wonder how different things would have been had he been disabled in his previous duties. No-one would have argued that as the non-driving member of a motorway police car crew, he was just a passenger. Would they?
Thanks for your interest in this case, your posts and e-mail.I understand fully the constraints posed by professional ethics.
Seems to me that we, the men on the Clapham omnibus, ('cept for purple pitot, who missed it in Tooting!
) agree that 442 was a crewmember deserving to be treated as such by the insurers and courts.Common sense will prevail in the end, I feel sure. I wonder how different things would have been had he been disabled in his previous duties. No-one would have argued that as the non-driving member of a motorway police car crew, he was just a passenger. Would they?
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Ark. Sorry to rock your boat again but having canvassed every member of my unit, everyone without exception has stated that they are passengers first and crew second, indeed some say that they have absolutely no desire to be called anything other than police observers. It is perhaps interesting to note that I do not consider myself to be a policeman either! Throughout my police flying to date the first thing that I have been told by the various chief pilots and UEOs is that they (the police) are passengers with the exception that they walk under the disc unescorted and that they refuel the aircraft. With the recent ruling by the EU as mentioned by Letsby (wherever that post is now) there is unlikely to be any change to the current status quo. Having said that I would reiterate my feeling once more than natural justice in this particular case has not been served and I have no doubt that a court would look upon this particular case favourably.
For what it's worth, I've never been a police observer, but have earned part of my living for many years as a "Flight Test Observer", both in civil and military environments.
The wording in military regulations is that "A Flight Test Observer is not aircrew, but is part of the aircraft operating crew". The understanding in civil flight testing is the same. We are considered crew, because the mission of the aircraft could not be properly undertaken without us. FTOs are also required to maintain logbooks and are qualified within the procedures of an individual flight test organisation.
So far as I can see if you are there as part of the mission, are trained to do the job, and maintain a logbook, you're crew. You just aren't aircrew (apparently).
G
The wording in military regulations is that "A Flight Test Observer is not aircrew, but is part of the aircraft operating crew". The understanding in civil flight testing is the same. We are considered crew, because the mission of the aircraft could not be properly undertaken without us. FTOs are also required to maintain logbooks and are qualified within the procedures of an individual flight test organisation.
So far as I can see if you are there as part of the mission, are trained to do the job, and maintain a logbook, you're crew. You just aren't aircrew (apparently).
G
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If you really have the time, go to http://www.google.com and input a search for clyde+helicopters+lords. Sit and have a long read (as I did many years ago) and you will find where the precedent was set for this type of thing.
I'm an outsider in this debate, but it strikes me that if I were a police observer, I'd be asking my union to lobby the CAA (and anybody else in sight) for a statement otherwise.
G
G
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Good comment Genghis. The affected individuals only have to demand the proper insurance to alleviate the problem, and simply ignore what the Lords of flatbrains have to say.
One can argue what to call the folks, crew or non-crew, until the end of time. The issue is the employer stepping up to the risks involved, and not hiding behind the Warsaw convention. As long as we and they debate crew vs non-crew, the employers win.
One can argue what to call the folks, crew or non-crew, until the end of time. The issue is the employer stepping up to the risks involved, and not hiding behind the Warsaw convention. As long as we and they debate crew vs non-crew, the employers win.
Just a numbered other
I only have a few minutes, so won't go into depth now.
Purple, can't you see the difference between the Strathclyde case and this one?
Strathclyde Police chartered a helo from Clyde helicopters using their AOC. The element of 'hire or reward' was clear, and the policemen on board deemed passengers (within the terms of the Warsaw Convention) after lengthy debate.
442 was injured in a helicopter which was owned by his employer and operated on a POAC for the sole purpose of police operations. There can be no question that the helicopter existed purely for police work, and that the observers carried were the sole reason for it flying. They must be crew. There was no element of 'hire or reward' as you can't hire something that you own. The Warsaw Convention existed (note the irony that it was scrapped days after 442's accident) to limit airlines' liability to fare paying pax.
Ghengis and Nick, thanks for the support.
Purple, can't you see the difference between the Strathclyde case and this one?
Strathclyde Police chartered a helo from Clyde helicopters using their AOC. The element of 'hire or reward' was clear, and the policemen on board deemed passengers (within the terms of the Warsaw Convention) after lengthy debate.
442 was injured in a helicopter which was owned by his employer and operated on a POAC for the sole purpose of police operations. There can be no question that the helicopter existed purely for police work, and that the observers carried were the sole reason for it flying. They must be crew. There was no element of 'hire or reward' as you can't hire something that you own. The Warsaw Convention existed (note the irony that it was scrapped days after 442's accident) to limit airlines' liability to fare paying pax.
Ghengis and Nick, thanks for the support.
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OK – This is my last post on the subject. I am more than aware of the difference between the Strathclyde case and the case at Husbands Bosworth. I have extracted just two relevant passages from the Lords ruling on the Strathclyde case
“The activities which Sergeant X was carrying on while on the aircraft are not to be regarded as contributing in any way to the carriage of himself or the other persons on board. He therefore is properly regarded as a passenger”
“It is not suggested that the surveillance and detection duties on which Sergeant X was engaged at the time involved him at any stage in the handling of the helicopter. It is a matter of admission that the flying of the helicopter was a matter for which the pilot, Captain X, was solely responsible. Although Sergeant X was on board the helicopter in the course of his duties as a police officer, he was there merely as a passenger”
Notwithstanding the fact that the Strathclyde machine was being flown under contract by a commercial pilot from a commercial helicopter company and the East Midlands aircraft was flown by a commercial pilot whilst the relevant police authorities owned the helicopter. I fail to see how the Lords ruling can apply to the former case but not to the latter when the fundamental duties of a police officer on board each helicopter were the same.
The PAOM clearly states that a Police Officer must be trained in the correct use of the onboard police equipment and be tested once per annum thereafter. He is not, however, allowed to switch on that equipment, or use that equipment until the pilot has given permission. A police observer ‘might’ be asked to assist with navigation and lookout if requested by the pilot. I am the first to acknowledge that that isn’t exactly how we operate but that is how the legislators expect us to operate so I have to say again that as a commercial helicopter pilot working for the police, the only people I currently fly - are passengers (for reward).
“The activities which Sergeant X was carrying on while on the aircraft are not to be regarded as contributing in any way to the carriage of himself or the other persons on board. He therefore is properly regarded as a passenger”
“It is not suggested that the surveillance and detection duties on which Sergeant X was engaged at the time involved him at any stage in the handling of the helicopter. It is a matter of admission that the flying of the helicopter was a matter for which the pilot, Captain X, was solely responsible. Although Sergeant X was on board the helicopter in the course of his duties as a police officer, he was there merely as a passenger”
Notwithstanding the fact that the Strathclyde machine was being flown under contract by a commercial pilot from a commercial helicopter company and the East Midlands aircraft was flown by a commercial pilot whilst the relevant police authorities owned the helicopter. I fail to see how the Lords ruling can apply to the former case but not to the latter when the fundamental duties of a police officer on board each helicopter were the same.
The PAOM clearly states that a Police Officer must be trained in the correct use of the onboard police equipment and be tested once per annum thereafter. He is not, however, allowed to switch on that equipment, or use that equipment until the pilot has given permission. A police observer ‘might’ be asked to assist with navigation and lookout if requested by the pilot. I am the first to acknowledge that that isn’t exactly how we operate but that is how the legislators expect us to operate so I have to say again that as a commercial helicopter pilot working for the police, the only people I currently fly - are passengers (for reward).
As it happens, whilst looking into this thread, I had the ANO open on the desk since I'd been looking up definitions of aerial work.
There are two paragraphs which might be of interest: -
ANO Article 32(3)(a)and (a), covering POM...
(i) The operator of every aircraft to which this article applies shall... make available to each member of its operating staff a police operations manual.
(ii) ensure that on each flight every member of the crew has access to a copy of every part of the operations manual which is relevant to his duties on the flight.
ANO Article 31(4)
...operating staff means the servants and agents employed by the operator, whether or not as members of the crew of the aircraft, to ensure that the flights of the aircraft are conducted in a safe manner, and includes an operator who himself performs these functions.
It seems then to me that the key term is "operating staff", and the crucial issue is whether the observer is employed (no doubt amongst other reasons) to ensure that flights are conducted in a safe manner.
Personally I think an observer, whether police, flight-test, navy, or whatever is part of the crew. But, I suspect that any judge making a decision will be poring over these paragraphs and it is a little ambiguous.
Strengthening the argument, ANO Art.20 (7)(b) which is about passenger flights says...
"The crew of an aircraft ... shall include cabin attendants ... duties to be assigned by the operator or the commander of the aircraft but who shall not act as members of the flight crew".
So if a hostess is part of the crew, but not part of the flight crew, I think that it might be implied that the same applies to a police observer. Sounds like a job for the Unions again, they must have a tame lawyer somewhere who can help you out with this.
As I said before I am a complete outsider, so by all means tell me to shut up if I'm spouting sphericals.
G
There are two paragraphs which might be of interest: -
ANO Article 32(3)(a)and (a), covering POM...
(i) The operator of every aircraft to which this article applies shall... make available to each member of its operating staff a police operations manual.
(ii) ensure that on each flight every member of the crew has access to a copy of every part of the operations manual which is relevant to his duties on the flight.
ANO Article 31(4)
...operating staff means the servants and agents employed by the operator, whether or not as members of the crew of the aircraft, to ensure that the flights of the aircraft are conducted in a safe manner, and includes an operator who himself performs these functions.
It seems then to me that the key term is "operating staff", and the crucial issue is whether the observer is employed (no doubt amongst other reasons) to ensure that flights are conducted in a safe manner.
Personally I think an observer, whether police, flight-test, navy, or whatever is part of the crew. But, I suspect that any judge making a decision will be poring over these paragraphs and it is a little ambiguous.
Strengthening the argument, ANO Art.20 (7)(b) which is about passenger flights says...
"The crew of an aircraft ... shall include cabin attendants ... duties to be assigned by the operator or the commander of the aircraft but who shall not act as members of the flight crew".
So if a hostess is part of the crew, but not part of the flight crew, I think that it might be implied that the same applies to a police observer. Sounds like a job for the Unions again, they must have a tame lawyer somewhere who can help you out with this.
As I said before I am a complete outsider, so by all means tell me to shut up if I'm spouting sphericals.
G
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Will this thread never end? Article 31(4) of the ANO does appear in the PAOM right after this one in Sect 1 4 Para 7
Quote:
The ANO (No2) 1995, Article 118(1) defines flight crew as follows:
‘Flight crew’ in relation to an aircraft means those members of the crew of the aircraft who respectively undertake to act as pilot, flight navigator, flight engineer and flight radio operator of the aircraft.
All other persons on board the aircraft, including Police Observer, are regarded as passengers.
Unquote.
Quote:
The ANO (No2) 1995, Article 118(1) defines flight crew as follows:
‘Flight crew’ in relation to an aircraft means those members of the crew of the aircraft who respectively undertake to act as pilot, flight navigator, flight engineer and flight radio operator of the aircraft.
All other persons on board the aircraft, including Police Observer, are regarded as passengers.
Unquote.
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Purple:
Well, what a surprise that the most favourable definition for Police Authorities is conveniently in the PAOM!
The point of this endless discussion is that,as Genghis has reminded us, the legislation is contradictory and unclear.
The Law is (still)an Ass, I fear.
Well, what a surprise that the most favourable definition for Police Authorities is conveniently in the PAOM!
The point of this endless discussion is that,as Genghis has reminded us, the legislation is contradictory and unclear.
The Law is (still)an Ass, I fear.
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Does all this affect HEMS paramedics in a similar fashion? I ask because I thought the only reason we were allowed into unrecced LSs was because we has a HEMS crewmember acting as an observer during landing... something that would have to be construed as a 'flight duty'.
Genghis - the observers already operate radios but they're all in the emergency services bands for which they don't require a flight r/t operator's licence.
Ally - It would be an interesting legal argument between the definition of a HEMS crew member in JAR-OPS 3 and that quoted above from the ANO.
This, however, brings up something that may be a way ahead; as many of you will know already, in "a couple of years" [CAA quote] there will be a Public Service AOC. This will encompass police, fire, ambulance etc. With this in mind, it would be an opportune moment for all the "non-pilot personnel" to decide what status they want their associations to lobby for and there's the rub; my personal experience is that there are widely differing opinions amongst the observers as to just what they want to be. It should perhaps be addressed by the Police Federation and Unison to see what the concensus is.
Ally - It would be an interesting legal argument between the definition of a HEMS crew member in JAR-OPS 3 and that quoted above from the ANO.
This, however, brings up something that may be a way ahead; as many of you will know already, in "a couple of years" [CAA quote] there will be a Public Service AOC. This will encompass police, fire, ambulance etc. With this in mind, it would be an opportune moment for all the "non-pilot personnel" to decide what status they want their associations to lobby for and there's the rub; my personal experience is that there are widely differing opinions amongst the observers as to just what they want to be. It should perhaps be addressed by the Police Federation and Unison to see what the concensus is.
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Well PP.I bow down to your ability to regurgitate paragraphs from books, I am just glad that you are not fighting my cause. I am also glad that I never had the pleasure of working with you, God forbid that you "might" ask me to do some navigation or answer a radio once in a while. Of course when I worked I just looked out of the window and watched the world go by.
May I remind you that without observers, YOU WOULD NOT HAVE A JOB. Find that in your bloody manual.
The observers are an integral part of the crew and a good observer makes all the difference between success and failure.
Yes we had to wait for clearance to switch the bus bar on, but in my experience I never had to ask "permission" from the throttle jockey, but then I was working with and not for the pilot.
The reason this thread is never ending is because it matters. Maybe not to you, but for a lot of others it is of great significance.
Put away your books and read between the lines for once. It is far from cut and dried as you so succinctly suggest.
Stick to what you think you are good at. If you find this topic boring, may I suggest you leave it well alone.
[ 24 September 2001: Message edited by: 442 ]
[ 24 September 2001: Message edited by: 442 ]
May I remind you that without observers, YOU WOULD NOT HAVE A JOB. Find that in your bloody manual.
The observers are an integral part of the crew and a good observer makes all the difference between success and failure.
Yes we had to wait for clearance to switch the bus bar on, but in my experience I never had to ask "permission" from the throttle jockey, but then I was working with and not for the pilot.
The reason this thread is never ending is because it matters. Maybe not to you, but for a lot of others it is of great significance.
Put away your books and read between the lines for once. It is far from cut and dried as you so succinctly suggest.
Stick to what you think you are good at. If you find this topic boring, may I suggest you leave it well alone.
[ 24 September 2001: Message edited by: 442 ]
[ 24 September 2001: Message edited by: 442 ]
Just a numbered other
PP
I’m so sorry if we are boring you. You may be surprised to learn that all opinion is as valid and likely to be worth reading as yours. You cannot presume to post your encyclical and expect it to be accepted without comment.
You are still missing the point. Current regs may define the observer as a pax. This is from a licensing perspective, and came about to absolve Police authorities from costly licensing, FTL and currency requirements. In the Strathclyde case, the B206, was chartered under Clyde Helicopters’ AOC, and had no police role equipment. It was easily arguable that the observers were pax. This case is different.
As Genghis and multp understand, the point under scrutiny is whether these people, who are not only vital to the operation of a police aircraft, but its sole reason for existing, should be regarded as pax in the eyes of the Warsaw convention.
Best legal advice to Police observers at the formation of EMASU was that the convention did not apply to them.
This convention was agreed to limit the liability of airlines to their fare paying pax in the event of accident. Note, it never applied to the crew, including cabin attendants. Cabin crew in the airline are not flight crew, nor licensed, but are still considered to be outside the remit of the convention (sorry, were, as the iniquitous Warsaw Convention has since been scrapped by EU legislation), as they do have a role as ‘operating staff’. They (like Police observers, IMHO) are not pax.
I can well understand 442’s ire at your superior attitude. Try a bit of original thought as well as bookworming. The subject remains as controversial now as it was before your final words of wisdom. This is not an academic exercise in wordplay. Andy’s future depends on the outcome of this argument.
I am surprised that there has been little input from other observers. Are you all happy to continue your daily and nightly duties with this uncertainty hanging over you?
Think hard on on it. You might be in a wheelchair after your next sortie. Wouldn’t it be nice to have the certainty that your future would be secure? For the security of your families you should be lobbying the Federation to push for a final decision. If you are not properly covered by your employers for all eventualities, then you are mugs to continue to fly.
I’m so sorry if we are boring you. You may be surprised to learn that all opinion is as valid and likely to be worth reading as yours. You cannot presume to post your encyclical and expect it to be accepted without comment.
You are still missing the point. Current regs may define the observer as a pax. This is from a licensing perspective, and came about to absolve Police authorities from costly licensing, FTL and currency requirements. In the Strathclyde case, the B206, was chartered under Clyde Helicopters’ AOC, and had no police role equipment. It was easily arguable that the observers were pax. This case is different.
As Genghis and multp understand, the point under scrutiny is whether these people, who are not only vital to the operation of a police aircraft, but its sole reason for existing, should be regarded as pax in the eyes of the Warsaw convention.
Best legal advice to Police observers at the formation of EMASU was that the convention did not apply to them.
This convention was agreed to limit the liability of airlines to their fare paying pax in the event of accident. Note, it never applied to the crew, including cabin attendants. Cabin crew in the airline are not flight crew, nor licensed, but are still considered to be outside the remit of the convention (sorry, were, as the iniquitous Warsaw Convention has since been scrapped by EU legislation), as they do have a role as ‘operating staff’. They (like Police observers, IMHO) are not pax.
I can well understand 442’s ire at your superior attitude. Try a bit of original thought as well as bookworming. The subject remains as controversial now as it was before your final words of wisdom. This is not an academic exercise in wordplay. Andy’s future depends on the outcome of this argument.
I am surprised that there has been little input from other observers. Are you all happy to continue your daily and nightly duties with this uncertainty hanging over you?
Think hard on on it. You might be in a wheelchair after your next sortie. Wouldn’t it be nice to have the certainty that your future would be secure? For the security of your families you should be lobbying the Federation to push for a final decision. If you are not properly covered by your employers for all eventualities, then you are mugs to continue to fly.
Technically, observers need a 'restricted radio licence' to transmit on a VHF frequency air to ground radio. In the past, Basic Observers Courses used to teach and award observers with such qualifications. We've got two working here. It seems to have slipped thru the cracks recently though. If one has to talk to other a/c OR coastguard for instance, one needs that licence.
On the main issue:
I don't think many Observers are aware this thread is going on! Spread the word so that this subject gets as wide a hearing as possible.
I hope it works out for you 442. Most people only see the up side of your job, very few have read the fine print when it comes to a situation like this. And it won't be the last... I wonder how the yanks handle it..because another of their EMS cabs has just gone in!
Carpe Diem!
On the main issue:
I don't think many Observers are aware this thread is going on! Spread the word so that this subject gets as wide a hearing as possible.
I hope it works out for you 442. Most people only see the up side of your job, very few have read the fine print when it comes to a situation like this. And it won't be the last... I wonder how the yanks handle it..because another of their EMS cabs has just gone in!
Carpe Diem!