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Pacific Blue pilot charged with endangering safety

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Pacific Blue pilot charged with endangering safety

Old 20th Apr 2011, 01:58
  #21 (permalink)  
 
Join Date: Jun 2009
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queenstown airport - Google Search

The airport in in extreme mountainous terrain without any straight in or out approaches (many times you're doing figure 8s in to find a clearing in the clouds).

AIP New Zealand

Last edited by Phalanger; 20th Apr 2011 at 03:17.
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Old 20th Apr 2011, 03:09
  #22 (permalink)  
 
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I still don't understand..

Christchurch is less than 200nm away, with 2 ILSs and 3200 meter runway. Why not just use that as a takeoff alternate?

What's the reasoning behind this company rule with 30 min for an immediate return? If there is a problem after takeoff, then simply fly to the takeoff alternate.
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Old 20th Apr 2011, 03:32
  #23 (permalink)  
 
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I think the concern is more for an immediate return if the aircraft can not safely fly across the mountain region which is highly affected by weather.
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Old 20th Apr 2011, 05:18
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From the other thread running on it.

When departing Queenstown non rnp you always have a plan A and a plan B (like most flights I guess) . What this guy did was compromise his PLan B.
eg Plan A, you climb to around about 5500ft VMC, at this stage, if you have two engines you have enough height to be able to lose one, go IMC, and still get out of the valley without hitting a hill. Plan B, get to 5400ft VMC, realise you can't make 5500ft without going IMC, descend and return into a visual figure of 8 pattern at the feild, and land. Part of plan B involves having enough daylight left to be able to depart, realise you can''t meet the requirements of the departure, go into the figure of 8 in order to align with the strip, and then conduct a visual landing. The 30 minutes is to allow you enough time to do that if Plan A doesn't work, and every now and then, Plan A doesn't work. Hope that helps explain it.
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Old 20th Apr 2011, 05:21
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Hope that makes it clear why Christchurch isn't an option. The long and the short of it is that the hills are quite high and if you don't have the luxury of rnp curved paths you have to be able to reach a certain height ( depending on your current weight) in order to go IMC and still clear the hills if one engine gives up.
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Old 20th Apr 2011, 06:21
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Framer: While that is interesting detail it's not what I am befuddled by. Even assuming that what he did was unwise, unprofessional, and a violation of company procedures none of that--by itself--raises to the level of criminal conduct.

I don't understand the theory upon which legal liability attaches to the pilot's behavior. If every pilot who did things which were unwise, unprofessional, and a violation of company procedures went to jail...society would have to build a lot more jails than we have now.

One doesn't have to condone his behavior to think that criminally charging him is over the top.
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Old 20th Apr 2011, 13:21
  #27 (permalink)  
 
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Thanks framer. That explains everything.

MountainBear, it would not be a detail then, but the main point. The point not being the time of takeoff, but that he took off without having the option of the company established contingency procedure.

One could argue if 18 mins would be enough to perform the figure 8 pattern and land. One would hope that it was assessed and discussed to both pilots agreement before departure. If so, it's an interesting discussion to what extent judgement of the pilots, will allow for superseding company procedures. What if they were 3 min too late or only 1 or 30 seconds?

Definitely a grey area. If they can prove that they had made an estimation on how many minutes it would take for the return, or it is obvious that 18 min is enough, I think most companies would have given a slap on the wrist and a pad on the back with the other hand.

If they gave it no consideration at all, maybe the allegations are not that wrong after all.
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Old 20th Apr 2011, 16:52
  #28 (permalink)  
 
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NigelonDraft,

Thanks for your reply, which is appreciated and understood.

Before posting I had read BlueCoyote's post.

Let me begin by making clear that I have never been in or out of NZQN as pilot or passenger. I can't say I know the airport and I realize that it is located in mountainous terrain that requires special procedures.

Now that Phlanger has posted the New Zeland AIP for this airport, I have reviewed the 9 different published departure procedures and acknowledge their difficulties.

I further acknowledge that I know nothing of this incident other than what has been posted in this thread. There could very well be numerous extenuating circumstance of which I am unaware.

Notwhitstanding all of that, I do not think much differently than I did before. The pilot in question violated a company procedure. He did NOT violate the law.

1. Since the NZ authorities know enough about this airport to publish all of those detailed departure procedures it would appear that it was not too difficult for them to decide, as did the airline in question, that VFR departures made at twilight would not permit adequate margins of safety.

2. That being the case, I don't see it as difficult at all for them to include a specific pre-twilight limitation for departures specific to this airport. Nevertheless, they have failed to do so. I view that fact as negligence on the part of the authorities which, at the very least, is no less compromising of safety than the alleged actions of the pilot. Why then are they not being charged with criminal negligence?

3. If a difference of 12 minutes in the time of departure [between the actual time before twighlight (18 min) and the company procedure of 30 min] is great enough to require possibly putting this pilot in prison for a year, why is he the only one apparently held to this standard?

4. If the controller(s) knew that this departure (with less than a 30 minute window pre-twilight) was so risky as to "endanger the safety of flight", why did they authorize this aircraft to depart? At least on the surface, it would appear that they knew the departure was within the limits proscribed by law. They may or may not have known that it was not within the limits proscribed by the particular airline.

Should this pilot have violated his company's procedures? Of course not! However, I still maintain that the violation of a company procedure does NOT constitute criminal negligence; particularly if it does not also violate the CAR.

From my perspective, errors in judgment or operational practice committed by airline pilots in the course of flight operations should never be subject to criminal prosecution. I realize that in many jurisdictions of the world they are but, in my country they are not.

I respectfully submit that if such is to be the case, I would long since have been imprisoned instead of retiring without so much as scratching any aluminium over a 40+ year career. I would venture a guess that their are precious few in this profession, or in this forum, who could not have been my cell mates.

Such laws continue to strike me as ludicrous where ever they exist and serve no purpose other than the political exculpation or satisfaction of so-called "authorities."

If the Company believes this violation of policy was so onerous, then let them dismiss their pilot. Prosecutorial action is totally unwarranted in my view. I would go so far as to call it retarded in the 21st Century.
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Old 21st Apr 2011, 03:47
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In many countries, the company manual (FOM) is approved by the aviation authority of the country, hence violating the FOM can be interpreted as violating the law. Where as, manual thats accepted means violation of which is an internal matter.

It is like if a company has MEL, we follow MEL instead of MMEL, if an item is required by MEL but not MMEL which has failed prior to departure, dispatch such an aircraft would be an illegal action.
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Old 21st Apr 2011, 11:32
  #30 (permalink)  
 
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Seems like someone needs to be seen taking public action. Any elections coming up?
Judges aren't elected in NZ


The relevant piece of law ...



44 Dangerous activity involving aircraft, aeronautical product, or aviation related service
  • (1) Every person commits an offence who—
    • (a) operates, maintains, or services; or
    • (b) does any other act in respect of—
    any aircraft, aeronautical product, or aviation related service, in a manner which causes unnecessary danger to any other person or to any property.



    (2) Every person commits an offence who—
    • (a) causes or permits any aircraft, aeronautical product, or aviation related service to be operated, maintained, or serviced; or
    • (b) causes or permits any other act to be done in respect of any aircraft, aeronautical product, or aviation related service,—
    in a manner which causes unnecessary danger to any other person or to any property.



    (3) Every person who commits an offence against subsection (1) or subsection (2) of this section is liable,—
    • (a) in the case of an individual, to imprisonment for a term not exceeding 12 months or a fine not exceeding $10,000; or
    • (b) in the case of a body corporate, to a fine not exceeding $100,000.
    (4) The provisions of this section shall be in addition to and not in derogation of any regulations or rules made under this Act
Civil Aviation Act 1990 No 98 (as at 01 January 2011), Public Act – New Zealand Legislation

For those worried about a jail term, that isn't going to happen. Thats just there for when someone commits the offence multiple times or the fine is not deterrent enough.

Also it is not normally the task of the CAA to determine if guilty/not guilty. If there isn't any relevant case law to relate to and help determine if there should be a prosecution, the CAA's role is to prosecture and bring it before the courts.

What I do find interesting is that the captain was charged and the co-pilot wasn't.
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Old 21st Apr 2011, 14:57
  #31 (permalink)  
 
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Two charges

The artice that Jazz Hands linked to (see post 3) has a paragraph which states

The CAA says one of the charges against the pilot is unnecessary endangerment under section 44 of the Civil Aviation Act. If convicted, the offence carries a fine of up to NZ$10,000 ($7,930) or up to 12 months in jail, according to the CAA. It declines to specify the nature of the second charge.

Everyone so far seems to be running at the mouth about the first charge but perhaps it is the second which is actually going to cost the pilot.

In my opinion the only question about the first offence is "is contravening company operating procedures an offence under the quoted section of the act?" If the answer is YES then, sorry but ..... guilty (even if it makes no real sense). If the answer is NO then it'll be no contest and, I assume, won't even get to court.

As for why the pilot and not the copilot? Isn't the PIC the one who is responsible? Again an assumption but isn't the pilot (not necessarily the Captain) the PIC not the copilot (who may be the Captain).


I think I need a drink. This damned Mediterranean weather in UK at this time of year..................................
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Old 21st Apr 2011, 15:18
  #32 (permalink)  
 
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What I do find interesting is that the captain was charged and the co-pilot wasn't.
How about the ATCo? He's just as liable according to: [quote](2) Every person commits an offence who—
(a) causes or permits any aircraft, aeronautical product, or aviation related service to be operated, maintained, or serviced; or
(b) causes or permits any other act to be done in respect of any aircraft, aeronautical product, or aviation related service,—
in a manner which causes unnecessary danger to any other person or to any property.

However I agree with Surplus1 about the responsibility of the authorities to set clear limits regarding the need for sufficient time to return under VFR.
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Old 21st Apr 2011, 15:19
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If Ruebee has posted the complete contents of Section 44, the wazzocks in the NZCAA will have a hard job making that one stick as this is appears to be a company limitation. If they were going to roast him for operating outside outside his company's operation manuals - well that might be different... It would also be interesting to see what their performance manual has for this airfield. Does just it say "Miss the hills" or is there a specific N-1?

PM
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Old 21st Apr 2011, 15:29
  #34 (permalink)  
 
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NZ CAA Shoots Themselves in The Foot

So...let me get this right, the NZ CAA states that no regulation has been breached, but the pilot has breached internal company requirements, and is then alleged to have commited an act of endangerment?

Oh, I've got it now, does that mean that the NZ CAA are going to take themselves to court for negligence due to inherently unsafe legislation?

Yes...that's it, I'm sure there is more to follow.
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Old 21st Apr 2011, 16:00
  #35 (permalink)  
 
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There is a big difference between flying around privately (which is covered by the law) and operating as a commercial operator. As, in this case, an airline you need to have a FOM in place which determines the way you are going to operate. The FOM is not a simple company regulation. It does get approved by the country's aviation authority and becomes the law. By not operating according to the FOM, one operates outside the legal regulations and ultimately outside the law.
This is due to the fact, that the FOM in general has to be at least as restrictive as the law, BUT in many operations certain concessions have been made in certain areas of operation, which are actually less restrictive, than the law. For example, a country's air law says, crew rest time has to be at least 12 h or as long as the preceding FDP and it can be reduced to a minimum of 10 h.
An operator needs crew to fly an evening flight to an outstation and leave the next morning. Under normal circumstances this operation would allow for 11 hours crew rest, but in case of a delay, this would mean, the morning flight would be delayed due to the crew's rest period and screw up the whole rotation for that aircraft during that day, leading to next evening flight being delayed and so on.
This operator approaches their DCA with an application for dispensation. This dispensation says, the crew's rest period can be reduced to 9 hours AT ACCOMMODATION under the provision, that the following day this crew will only fly back to it's home base (1 sector, about 3.5 -4 h FDP) and have a local night and may not be dispatched before 06:00 local time the next day.
In other words, the operator can get a dispensation from the air law's FDP regulation on the one hand side, but restricts himself in turn to be a lot more restrictive on FDP the next day.
If the operator would now make use of the first part of the dispensation and allow it's crew only 9 hours of rest, without allowing the FDP restrictions the next day, that crew would theoretically still operate within the air law's FDP regulations.
They will in the end however violate the air law and DCA will go after the crew members for that.

If one now looks at this departure aerodrome in question, one could say it is not safe to operate a B737 out of there, since due to lack of facilities no T/O alternate would be available in case of an eingine failure just after V1. The a/c might not be able to gain enough height to safely clear the mountains. In order to make provisions for this case, the operator has put the twilight minus 30 minutes rule into their FOM, which has been approved by the NZ CAA and has become part of the air law, which has been violated by that specific Captain.
The very same person might have been legal to fly the same a/c type out of the same airfield at 18 minutes before twilight, if he would have flown for a different operator, which might have put different restrictions into it's FOM, e.g. payload restrictions in order to achieve the minimum climb gradient required to clear the mountains in IMC / or at night.
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Old 21st Apr 2011, 18:24
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Unhappy Oz Law Provides a Specific Offence

Folks,

Under Australian Aviation Law, pilots are compelled to comply with the operator's Operations Manual:

215 Operations manual
(1) An operator shall provide an operations manual for the use and
guidance of the operations personnel of the operator.
Penalty: 25 penalty units.

.........

(9) Each member of the operations personnel of an operator shall
comply with all instructions contained in the operations manual
in so far as they relate to his or her duties or activities.
Penalty: 25 penalty units.

(10) In this regulation, a reference to the operations personnel of an
operator shall be read as including a reference to a person
undergoing flight training with that operator.

(11) An offence against subregulation (1), (2), (3A), (5), (6), (7), (8)
or (9) is an offence of strict liability.
Note For strict liability, see section 6.1 of the Criminal Code.

(12) It is a defence to a prosecution under subregulation (3A) if the
defendant had a reasonable excuse.
Note A defendant bears an evidential burden in relation to the matter in
subregulation (12) (see subsection 13.3 (3) of the Criminal Code).

Now you will note that the offence attracts a maximum fine of 25 penalty units or about $2700. The FO would be in the frame if he was acquiescent in the breach.

Normally, in the absence of a specific direction from the regulator requiring the 30 minute buffer on twilight, a charge of reckless endangerment would be tossed on first reading unless the Captain sought relief from the company, was refused and took off despite vehement objections from the FO, or something similar.

I don't know any details or any rumours but it does seem unusually heavy handed....guess we'll just have to wait for the details to emerge.

Stay Alive,
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Old 21st Apr 2011, 18:27
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I have two responses to the additional comments.

First, if it is true that under NZ law the company's procedures take on the affect of law once they are approved by the CAA then by definition there is a conflict in the law. The law governing when ATC can give permission to take off and the law governing when a pilot had legal authority to take off are in direct conflict with one another. Therefore, it is the law which is unsafe, not the pilots behavior. You solve the conflict in the law by changing it; not by charging one party and not the other.

Second, if it is true that under NZ law the company's procedures take on the affect of law once they are approved by the CAA then by definition the company is a guilty as a pilot. There is nothing in the law as quoted on these forums that exempt the company from being found criminally liable. Who employed the pilot? The airline. Who supervised the pilot? The airline. Who is responsible for the pilots behavior. The airline. The pilot has no independent authority to order a take-off of the airline's airplanes outside of the scope of his employment with that airline. If he is guilty so must they be.

The more information that is posted in this thread the more obvious becomes that this is a hatchet job. The pilot pissed somebody in authority off somewhere in his/her career and that person now has found an excuse to screw him over.

A shameful case for NZ as a country.
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Old 21st Apr 2011, 18:52
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Does the company not have a system in place for dispensations with additional restrictions?
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Old 26th Apr 2011, 08:00
  #39 (permalink)  
 
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Two aviation (union) aphorisms come to mind
No good deed ever goes unpunished.
If you play ball with the company, you end up with the bat up your chuff.

Dont know the nitty details of this incident, but from the sparse details, the Capt. decided to help out company/passengers by sticking his neck out.
It got chopped off.
Oh dear.
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Old 30th Apr 2011, 16:35
  #40 (permalink)  
 
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Agreed. Seen it backfire too many times. Best not to take chances.
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