Analysis of Aviation Law Cases - Case Study Example

I In the problem, Carl's IR has lapsed but he is flying in IMC and IFR, presumably on a PPL. He is therefore considered to be in breach of his PPL's priviliges under Schedule 8 of the Air Navigation Order (ANO). In addition, as extensively discussed below, Carl is also probably in breach of article 52(e) ANO in relation to his pre-flight fuel planning. He may also have invalidated the aircraft hull insurance so any claim for the damage to the aircraft may be refused by the insurers. Specifically, Article 52 of the Air Navigation Order 2005 ("ANO") dealing with the pre-flight action by commander of aircraft requires a commander, among others, to ensure that the flight can safely be made and that there is sufficient fuel for the intended flight, thus: "Pre-flight action by commander of aircraft 52. The commander of an aircraft shall take all reasonable steps to satisfy himself before the aircraft takes off: (a) that the flight can safely be made, taking into account the latest information available as to the route and aerodrome to be used, the weather reports and forecasts available and any alternative course of action which can be adopted in case the flight cannot be completed as planned; (b) either that: (i) the equipment required by or under this Order to be carried in the circumstances of the intended flight is carried and is in a fit condition for use; or (ii) the flight may commence under and in accordance with the terms of a permission granted to the operator under article 21; (c) that the aircraft is in every way fit for the intended flight, and that where a certificate of maintenance review is required by article 14(1) to be in force, it is in force and will not cease to be in force during the intended flight; (d) x x x ; (e) in the case of a flying machine or airship, that sufficient fuel, oil and engine coolant (if required) are carried for the intended flight, and that a safe margin has been allowed for contingencies, and, in the case of a flight for the purpose of public transport, that the instructions in the operations manual relating to fuel, oil and engine coolant have been complied with; x x x " [Emphasis supplied] Moreover, Article 157 (Interpretation) of the ANO defines a commander as follows: 'Commander' in relation to an aircraft means the member of the flight crew designated as commander of that aircraft by the operator, or, failing such a person, the person who is for the time being the pilot in command of the aircraft; [Emphasis supplied] In the situation given, it is clear that Carl was the commander of the aircraft for purposes of Article 52 of the ANO because Carl was the pilot in command of the aircraft. As a commander, it is therefore Carl's responsibility to conduct all pre-flight action as required of him under Article 52 of the ANO. Specifically, Carl's responsibility is to ensure before the flight that the aircraft has sufficient fuel for the intended flight. Based on the situation given, the aircraft's engine stopped due to fuel starvation, there being insufficient fuel for the intended flight. Moreover, considering Carl's failure to check the sufficiency of the fuel, he likewise failed to - (1) ensure "that the flight can safely be made," (2) take "into account the latest information available as to the route and aerodrome to be used, the weather reports and forecasts available," (3) ensure that "the equipment required" in the circumstances of the intended flight is carried and "is in a fit condition for use"; (4) see to it "that the aircraft is in every way fit for the intended flight," and (5) carry sufficient fuel for the intended flight, all in violation of Carl's duty as commander pursuant to Article 52 of the ANO. Furthermore, and as previously stated, Article 52 of the ANO requires a commander like Carl in the given situation to ensure that the flight may commence under and in accordance with the terms of a permission granted to the operator under Article 21 of the ANO, which provides as follows: "Minimum equipment requirements 21 (1) x x x. (2) An aircraft registered in the United Kingdom shall not commence a flight if any of the equipment required by or under this Order to be carried in the circumstances of the intended flight is not carried or is not in a fit condition for use unless: (a) the aircraft does so under and in accordance with the terms of a permission under this article which has been granted to the operator; and (b) in the case of an aircraft to which article 38 or 39 applies, the operations manual or police operations manual respectively contains particulars of that permission." [Emphasis supplied] Clearly, the failure to carry sufficient fuel for the intended flight violates the above-quoted provision because lack of sufficient fuel renders the aircraft in an unfit condition for use. 2. Articles 73 and 74 of the ANO likewise provides as follows: "Endangering safety of an aircraft 73. A person shall not recklessly or negligently act in a manner likely to endanger an aircraft, or any person therein. Endangering safety of any person or property 74. A person shall not recklessly or negligently cause or permit an aircraft to endanger any person or property." Carl's omission and failure to carry sufficient fuel for the intended flight constitutes reckless and negligent act that will likely endanger an aircraft or person therein under Article 73 of the ANO and the same omission and failure constitutes a violation of Article 74 because such recklessness and negligence endangers any person or property. 3. Moreover, Part 8 (Movement of Aircraft), Article 95 (Rules of the Air) of the ANO provides that it shall be an offence to contravene, to permit the contravention of, or to fail to comply with, the Rules of the Air. In relation to Article 95, Rule 27 (2) of the Rules of the Air Regulations 2007 or ROTA on the Visual Flight Rules or VFR, it is provided that: "Flight within controlled airspace 27.- (2) Subject to paragraphs (3) and (4), an aircraft flying within Class C, Class D or Class E airspace - (a) at or above flight level 100 shall remain at least 1,500 metres horizontally and 1,000 feet vertically away from cloud and in a flight visibility of at least 8 km; (b) below flight level 100 shall remain at least 1,500 metres horizontally and 1,000 feet vertically away from cloud and in a flight visibility of at least 5 km." The given situation states that Carl flew into Luton airport which is a controlled airspace (i.e., Class D airspace or CTR1 D SFC - 6000'ALT/CTA2 D 2500'- 3500'ALT). Carl was flying in conditions of poor visibility, in cloud and out of sight of the ground. Clearly, this constitutes a contravention of Rule 27 (2) of the ROTA above-quoted which under Article 95 of ANO is considered as an offence. 4. Under Part A (Flight Crew Licences), Schedule 8 of the ANO, the holder of a private pilot's license has the following privileges: "(1) Subject to paragraph (2), the holder of a Private Pilot's Licence (Aeroplanes) shall be entitled to fly as pilot in command or co-pilot of an aeroplane of any of the types or classes specified or otherwise falling within an aircraft rating included in the licence. (2) He shall not: x x x (c) unless his licence includes an instrument rating (aeroplane) or an instrument meteorological conditions rating (aeroplanes), fly as pilot in command of such an aeroplane: (i) x x x; (ii) x x x; or (iii) out of sight of the surface;" Based on the situation given, Carl was flying in conditions of poor visibility, in cloud and out of sight of the ground. Under the above-quoted provision, Carl who is presumably a holder of a private pilot's license shall not fly as pilot in command of an aeroplane out of sight of the surface. Carl, therefore, has violated the conditions of his license considering that it is not shown that his licence includes an instrument rating or an instrument meteorological conditions rating. To make all matters worse for Carl, his instrument rating has lapsed. In this connection, considering that Alan knew all along and Carl's rating has lapsed and despite such lack of qualification, Alan still allowed Carl to fly under a lapsed rating, then Alan shall be deemed solidarily liable with Carl. In fact, Alan could also be guilty of aiding and abetting an offense. In the case of Carter Paterson and Pickford's Carriers v Wessel, [1947] K.B. 849 DC, it was ruled that a person could only be convicted, apart from some special exceptions, as an aider and abettor if he knew all the circumstances which constituted the offence and it is immaterial if he realised or not that those circumstances constituted an offence. If he knew all the circumstances and those circumstances constituted an offence, the court ruled that it was enough to convict him of being an aider and abettor under the Civil Aviation Act 1946 s. 23, where it was made unlawful for any person, except the three corporations named in the section, to carry passengers by air for hire or reward upon any scheduled journey between two places of which at least one was in the United Kingdom. Applying the Carter case abovementioned, it was held that evidence exists upon which a finding of "scheduled journeys" undertaken by persons other than the three corporations named in s. 23 of the Civil Aviation Act 1946 and that defendants knew all along the circumstances revealing a system of scheduled journeys. The court affirmed the defendants' conviction of aiding and abetting. In the instant situation, Alan knew all along that Carl's rating has lapsed to Alan could be liable for aiding and abetting. Moreover, the insurer of Bravo-Oscar Air Ltd's aircraft may validly resist a claim for insurance proceeds considering that the operator, through its manager Alan, allowed a person (Carl) to fly the insured aircrafts notwithstanding the fact that Alan's rating has lapsed. Bravo-Oscar Air Ltd, on the other hand, may argue that the acts of its manager is ultra vires and hence should not be attributed to the company which has a personality separate and distinct from Alan, its manager. In summary, Carl is liable for the penalties stated in Article 148 (5) (6) and (7) of the ANO. II. 1. Article 25 of the Air Navigation Order 2005 or ANO provides as follows: "25 (1) An aircraft shall not fly unless it carries a flight crew of the number and description required by the law of the country in which it is registered. (2) An aircraft registered in the United Kingdom: (a) shall carry a flight crew adequate in number and description to ensure the safety of the aircraft; x x x (7) Subject to paragraph (8), a helicopter registered in the United Kingdom shall carry at least two pilots as members of its flight crew if it: (a) has a maximum total weight authorised of 5700 kg or less; (b) (deleted); (c) is flying for the purpose of public transport; and (d) is flying in circumstances where the commander is required to comply with the Instrument Flight Rules or is flying at night on a special VFR flight. (8) A helicopter described in paragraph (7) shall not be required to carry two pilots if it - (a) is equipped with an autopilot with, at least, altitude hold and heading mode which is serviceable on take-off; (b) is equipped with such an autopilot notwithstanding that before take-off the approved autopilot is found to be unserviceable, if the helicopter flies in accordance with arrangements approved by the CAA; (c) is flying under and in accordance with the terms of a police air operator's certificate; or (d) is flying by day and remains clear of cloud and with the surface in sight." In the situation given, it appears that Dan needs another co-pilot because his helicopter which has a maximum total weight authorised of 5700 kg or less is flying for the purpose of public transport and in circumstances where the commander is required to comply with the Instrument Flight Rules. None of the exceptions in paragraph 8 was present. In the situation, Dan was the sole pilot manning the helicopter. It can however be argued that when he took Freda for a ride, it was a transport for public purpose as defined in Article 157 (3) of the ANO - "(3) Subject to the provisions of this article and articles 158 to 163, an aircraft in flight shall for the purposes of this Order be deemed to fly for the purpose of public transport- (a) if valuable consideration is given or promised for the carriage of passengers or cargo in the aircraft on that flight; (b) if any passengers or cargo are carried gratuitously in the aircraft on that flight by an air transport undertaking, not being persons in the employment of the undertaking (including, in the case of a body corporate, its directors and, in the case of the CAA, the members of the CAA), persons with the authority of the CAA either making any inspection or witnessing any training, practice or test for the purposes of this Order, or cargo intended to be used by any such passengers as aforesaid, or by the undertaking; or (c) for the purposes of Part 3 of this Order (other than articles 19(2) and 20(2)), if valuable consideration is given or promised for the primary purpose of conferring on a particular person the right to fly the aircraft on that flight (not being a single-seat aircraft of which the maximum total weight authorised does not exceed 910 kg) otherwise than under a hire-purchase or conditional sale agreement. Hence, Dan's helicopter should have had two pilots. 2. Article 8 of the ANO requires that an aircraft shall not fly unless there is in force a certificate of airworthiness duly issued or rendered valid under the law of the country in which the aircraft is registered or the State of the operator, and any conditions subject to which the certificate was issued or rendered valid are complied with. In the instant, case it doesn't appear that Dan has procured for himself a certificate of airworthiness for his helicopter. Thus, when Sam, an engineer, inspected the damage and informed Dan that the aircraft was unsafe to fly and that he, Dan was ''an idiot to fly the aircraft in such a state, it could have fallen to bits in the air'', it shows that the helicopter was not airworthy. Hence, it is safe to assume that Dan has not procured a certificate of airworthiness for his helicopter. 3. Articles 73 and 74 of the ANO likewise provides as follows: "Endangering safety of an aircraft 73. A person shall not recklessly or negligently act in a manner likely to endanger an aircraft, or any person therein. Endangering safety of any person or property 74. A person shall not recklessly or negligently cause or permit an aircraft to endanger any person or property." Dan's act of flying the helicopter in such a state constitutes reckless and negligent act that will likely endanger an aircraft or person therein under Article 73 of the ANO and the same omission and failure constitutes a violation of Article 74 because such recklessness and negligence endangers any person or property as in fact it endangers the life of Freda. These articles were likewise violated by Dan when he crashed on the second time using Alan's hired helicopter. 4. Under Article 26 of the ANO, a person shall not act as a member of the flight crew of an aircraft registered in the United Kingdom unless he is the holder of an appropriate licence granted or rendered valid under this Order. Under Schedule 8 of the ANO, a holder of a Private Pilot's Licence (Helicopters) shall be entitled to fly as pilot in command or co-pilot of any helicopter of a type specified in an aircraft rating included in the licence but he shall not fly such a helicopter for the purpose of public transport. Hence, Dan cannot be engaged for public transport. 5. Article 142 of the ANO requires the mandatory reporting of occurrences. Dan is required to report to the CAA any event which constitutes an occurrence) and which comes to his attention in the exercise of his functions as the operator and the commander of an aircraft. On the contrary, not only did he not disclose to Alan as to what happed to his helicopter, he actively misrepresented that it was merely due to an electrical fault. Clearly, this act of misrepresentation constitutes an offense under the ANO and a con-compliance of his mandatory duty to report the occurrence. Parenthetically, in one case, R. v Grzybowski, [1998] 1 Cr. App. R. (S.) 4, defendant Grzybowski pleaded guilty to making false entries in a flying log book contrary to the Air Navigation Order 1995 Art. 73(2). He was sentenced to six months' imprisonment. Defendant Grzybowski was a flying instructor teaching people to fly micro light aircraft when one of his pupils was killed in an accident while flying. It was discovered that several entries in his personal log book were falsified defendant Grzybowski. The Court on appeal dismissed the action stating that of the nine inaccurate entries in the log book, two were proven which constitutes the offence. That defendant Grzybowski did not only made false entries into his personal log book but produced false information to back them up, showed that defendant Grzybowski had acted deliberately. In the situation, the fact that Dan misrepresented to Alan about the accident shows that Dan acted deliberately. 6. Article 52 of the ANO requires a commander the following pre-flight action: "Pre-flight action by commander of aircraft 52. The commander of an aircraft shall take all reasonable steps to satisfy himself before the aircraft takes off: (a) that the flight can safely be made, taking into account the latest information available as to the route and aerodrome to be used, the weather reports and forecasts available and any alternative course of action which can be adopted in case the flight cannot be completed as planned; (b) either that: (i) the equipment required by or under this Order to be carried in the circumstances of the intended flight is carried and is in a fit condition for use; or (ii) the flight may commence under and in accordance with the terms of a permission granted to the operator under article 21; (c) that the aircraft is in every way fit for the intended flight, and that where a certificate of maintenance review is required by article 14(1) to be in force, it is in force and will not cease to be in force during the intended flight; x x x." [Emphasis supplied] As operator and commander, Dan has the responsibility to conduct all pre-flight action as required of him under Article 52 of the ANO. As such, Dan has to - (1) ensure "that the flight can safely be made," (2) take "into account the latest information available as to the route and aerodrome to be used, the weather reports and forecasts available," (3) ensure that "the equipment required" in the circumstances of the intended flight is carried and "is in a fit condition for use"; and (4) see to it "that the aircraft is in every way fit for the intended flight." As stated by Sam, the helicopter should not have been flown showing that the helicopter is an unfit condition for use. And had Dan made the necessary pre-flight procedures, including proper loading3, he wouldn't have flown so low which is prohibited under the ROTA and ANO. Notably, in one case, DPP v Roffey, (1959) 123 J.P. 241, defendant Roffey was charged with flying an aircraft within 1,000 yards of "an assembly" in the open air of more than 1,000 persons assembled for the purpose of witnessing or participating in an organized event which is prohibited under the ANO 1954. The evidence presented reveals that the persons assembled were moving in procession. The justices, being of the opinion that the persons were a procession only, and not an "assembly" in law, dismissed the information. The Divisional Court, which allowed the appeal rules that an "assembly" could be moving or stationary and that the word was merely to be construed as meaning a gathering of persons. In another case, Dickson (Thomas Donaldson) v Miln, 1969 S.L.T. 269, a helicopter was taking off from a garage in a city when it was caught by a strong gust of wind making the pilot partially lose his control. Pilot had to make an emergency landing less than half a mile away, after flying over a congested area at a height lower than the prescribed height for such areas. He had no permission from the Board of Trade. He appealed against his conviction of a breach of the Rules of the Air and Air Traffic Control Regulations rule 5 (1) (c) (i). In quashing his conviction, the court ruled that even assuming the helicopter had ever flown within rule 5, its operation was no more than taking off and landing and was accordingly within the exception in rule 5(3)(a). Using the Dickson case, therefore, Dan could counter argue that he was on take off stage and hence, not covered by the rule prohibiting low flying. 7. Be that as it may, Bravo-Oscar Air Ltd may claim against the insurance company which insured the damaged helicopter. Likewise, Bravo-Oscar Air Ltd and Freda has a cause of action for tort/damages against Dan for the second accident that occurred involving Bravo-Oscar Air Ltd's helicopter. Freda, in addition could likewise file another claim for tort/damages against Dan for the first accident involving Dan's helicopter. REFERENCES Air Navigation (General) Regulations 1993 (SI 1993 ) Air Navigation Order 1989 (SI 1989 ) Air Navigation Order 2005 Cameron (Hugh) v Smith [1982] S.C.C.R. 53 Carter Paterson and Pickford's Carriers v Wessel [1947] K.B. 849 DC Civil Aviation Act 1946 Civil Aviation Act 1982 Dickson (Thomas Donaldson) v Miln [1969] S.L.T. 269 DPP v Roffey, [1959] 123 J.P. 241 Fairflight Ltd v Handford [1951] 2 Lloyd's Rep. 321 Friend v Civil Aviation Authority [2005] EWHC 201 Omega Air Ltd v Irish Aviation Authority (C122/00) [2002] E.C.R. I-2569 R. v Abdulkarim (Khalid Ibrahim) [2000] 2 Cr. App. R. (S.) 16 (CA (Crim Div)) R. v Grzybowski [1998] 1 Cr. App. R. (S.) 4 R. v Jackson (Robert Valentine) [2006] EWCA Crim 2380 R. v Oliver (Laurence Charles) [1999] 1 Cr. App. R. (S.) 394 Rules of the Air and Air Traffic Control Regulations Sabena Technics SA v Singapore Airlines Ltd [2003] EWHC 1318 Read More