飞行员操作飞行手册Pilot Operational Flying Manual

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had not been laid before the

Trinidad Parliament. Since Civil

Aviation subordinate legislation

purports to be enforceable by

criminal proceedings (that is, you get

punished if you break it), it occupies

the same position. In a remedial case,

though, some latitude would be

allowed, such as where a person was

being refused a licence which would

enable a living to be earnt because

the law had not gone through the

proper procedure—righting a wrong,

in other words.

Interpretation

Expressions in subordinate

legislation have the same meanings

as those in the Act behind it, unless

there is a clear statement otherwise,

so you can’t use “ordinary

meanings” as with normal statute. In

fact, interpretation must be done in

terms of:

· a combination of the common

law rules for interpretation of

statute

· the particular enabling Acts, and

· the context of the regulation

concerned

using the Interpretation Act 1978 as a

guide, not the circumstances of the

case. This is because legislation

cannot necessarily be taken to mean

what it says because it may be badly

drafted, leaving the law open to

interpretations the enabling Acts do

not permit, from which injustice

could result (Commissioners' Decision

1/74). As far as we are concerned,

the first interpretation is made in the

cockpit. You (as Commander) have

the final authority as to the

disposition of your aircraft (Chicago

Convention Annex 2 Chapter 2, as

embodied in the Civil Aviation Act

1982), while you are in command,

therefore your word is law until

overturned by judicial review on an

application made within 3 months by

a person with a lawful interest.

In the case of any dispute, the

question of interpretation is always

primarily a matter for the High

Court, because a magistrate’s court

tends to concern itself with fact and

not law (that is, as to whether a case

should be brought in the first place),

with the above methods of guidance

being used as support in case of

ambiguity. Any judgements resolving

this would probably take place in

accordance with the spirit of the law,

that is, what, in the judge's opinion,

was the presumed intention of those

who made it. Provided a literal

interpretation isn't absurd, then it

applies regardless of any

inconvenience it may cause (subject

to the doctrine of precedent).

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Precedent

Law arises from these judicial

interpretations as well, because

notice is taken of them in later

proceedings, depending on the status

of the court in which they were

made. Interpretations made in the

House of Lords (which is the highest

court in the land) are binding on any

lower courts, but not the other way

round—what a Crown Court may

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think has no bearing on the House,

although it does in Magistrate's

Courts, which are lower in status.

This is known as judicial precedent,

which, naturally, must be written

down somewhere otherwise

decisions would get forgotten, hence

the expression case law. The idea is

that, once a legal issue is resolved, it

does not need to be reconsidered in

later cases where the facts are

substantially similar - the court must

uphold earlier decisions if there is

nothing unique or different from the

one being decided.

In short, regulations under Civil

Aviation subordinate legislation are

subject to the same Parliamentary

control as the enabling powers and

must be interpreted and applied in

accordance with them.

The above is similar in Canada.

Decisions of the Supreme Court of

Canada are binding on all lower

courts but, since 1982, it has almost

wholly restricted itself to hearing

cases concerning alleged breaches of

individuals’ charter rights. These

always arise in criminal cases where

an individual faces imprisonment,

which is not the case for violations

of the Aeronautics Act and

Regulations.

Summary

So, to summarise, whether a law

affects you or not depends on:

· The validity of the law itself

· If it's valid, whether it's

enforceable

· Whether it's been interpreted

correctly in the circumstances

· Whether the court actually has

jurisdiction.

This is true in Canada as well, except

that the procedure to determine

validity varies and the only invalid

Act of Parliament would be one

which is unconstitutional in its

entirety.

With reference to jurisdiction,

Section 99 (3) of the 1982 Act says

that (for the purposes of conferring

jurisdiction) any alleged offences

under the ANO or Section 81 do

not take place in an actual place, but

only in a deemed place, which means

that cases can be heard at selected

places, to give some flexibility where

a British registered aircraft acts

dangerously towards a Dutch ship in

international waters, where the

jurisdiction can therefore be given to

the place where the offender is

caught – the best example of this

was the Lockerbie trial, where a

Scottish Court was convened

abroad. This point is also useful to

you, in that it means you may not

have to go to the court nearest to the

place you're supposed to have

committed the offence, but could

choose by manoeuvre something

more convenient, like where your

solicitor lives, or where the juries are

more friendly.

276 Operational Flying

Talking of Scottish Courts, be aware

that Scottish Law is based on Roman

Law (as is the law in France, which

affects the law in Quebec) and

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therefore different in many ways

from the rest of the UK.

Negligence

The Common Law imposes on every

citizen a duty of care to other

people. Unfortunately, there is no

standard as to how much care is

reasonable but, in aviation cases, you

may find that your duty is absolute

and anything, however remote, will

be judged as forseeable. Also, juries

generally consist of people who

haven’t a clue what aviation is all

about, and probably think that

planes or helicopters are a pain

anyway, so behave accordingly (they

will certainly be aware that aviation

companies are required to carry lots

of insurance, even if its existence is

not strictly relevant to a court).

UK Air Transport Law

Although you are usually concerned

with law that affects you as a pilot,

Air Transport Law in the UK is

made in the same way as any other,

by a mixture of Common Law, Acts

of Parliament and subordinate

legislation which sometimes

implement international agreements

(see later). Where the question of

interpretation arises, reference is

sometimes made to Road Transport

in comparison, especially for

production of licences.

The Civil Aviation Authority was

created as a statutory body corporate

by section 1 (1) of the Civil Aviation

Act 1971, which is now Section 2(1)

of the Civil Aviation Act 1982.

Under this Act, which received

Royal Assent on 5 August 1971, the

Aerospace Minister for the time

being in office was made responsible

for the organisation and

development of Civil Aviation in its

many and varied aspects.

Thus, the CAA actually came into

being in early 1972, combining under

one Authority functions previously

carried out by various organisations

such as the Board of Trade, the Air

Registration Board and the Air

Transport Licensing Board. In fact,

up till the mid-30s, civil aviation was

controlled by the Air Ministry, which

naturally concentrated on military

needs. In 1936, the ARB was formed

from various interested parties – it

was actually a limited company

which had permission to drop the

word from its title. The ARB

subsequently became the

Airworthiness Division of the CAA.

As a corporate body (which as an

entity only consists of its Board

Members, or the equivalent of

shareholders in a Limited Company,

acting collectively), the functions of

the CAA are specified in the statute

creating it. The 1971 Act was

repealed and replaced by The Civil

Aviation Act 1982, which was a

Consolidation Act, not debated in

Parliament (actual changes to the

1971 Act would have been done by a

Civil Aviation (Amendment) Act

1982, a subtle difference).

The manner in which the CAA is to

perform its functions is given in

Section 4. The regulation of the

carriage of passengers for reward

takes place under Section 64. Section

60 authorises things to be done by

Air Navigation Order, which may

pass functions on to the CAA, but

this is not mandatory. Section 2 (4)

Legal Stuff 277

points out that the CAA is not to be

regarded as a servant or agent of the

Crown, but section 20 (2) allows it to

act on behalf of the Crown in clearly

specified cases.

There was an oversight in

establishing the CAA, in that the

ARB (a company limited by

guarantee, which carried out many of

its functions previously) was subject

to the jurisdiction of the

Parliamentary Commissioner,

whereas the CAA is not. This

increases the difficulties of getting

redress for wrongs committed.

Para 2 of Pt III of Sch 13 to the Civil

Aviation Act, 1982 permits a statutory

instrument carrying the title Air

Navigation Order to make incidental,

supplementary or transitional

provisions. Here is a list of functions

that may be conferred on the CAA

by (or under) an Air Navigation

Order, from Section 3 (c):

· Registration of aircraft

· Safety of air navigation and

aircraft (including airworthiness)

· Control of Air Traffic

· Certification of operators of

aircraft

· Personnel Licensing

· Noise Certification

· Certification of airworthiness of

aircraft

· Licensing of aerodromes

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· Approval of persons and

equipment

· Approval of schemes for the

regulation of flight times

· Validation of any certificate or

licence

Other functions were later added,

such as receiving of MORs.

However, there seems to be nothing

that permits an ANO to specify who

enforces it. There is also some

question as to whether the provision

for an ANO is actually made under

powers granted by Section 60, which

means it is not an ANO as defined,

and may not be enforceable. Note

also that, although the ANO may

prohibit you from engaging in Air

Navigation, certain activities are

nothing to do with the subject, as

they take place outside chocks

on/chocks of (or rotor start to

rundown). Filling in Tech Logs is

arguably one.

Anyway, as the above functions are

specified by subordinate legislation,

there is no power to be concerned

with anything not mentioned. There

are two reasons for this.

The first is that those activities

would be ultra vires anyway, and the

second concerns the CAA being

funded by charges schemes, that is,

other peoples' money. Funds utilised

for anything not authorised are

improperly used, technically being

misappropriation of funds. At first sight,

it might seem that the CAA could

use its funds to bring prosecutions,

but the problem is that prosecutions

(criminal ones, anyway) are brought

by the Crown (R v Fred Bloggs, for

instance) so these activities would

have to be specifically allowed under

the terms of sect 20 (2) of the Civil

Aviation Act 1982. The bringing of

criminal prosecutions has not been

conferred on the CAA by ANO, and

it cannot be because it is not listed in

278 Operational Flying

Section 3 of the Civil Aviation Act

1982 as a conferrable function (see

above). Anyway, Section 2 (4)

declares that the CAA is not to be

regarded as an agent of the Crown.

Close inspection of Section 2 also

discloses that the CAA is a juristic

person (e.g. artificially created),

meaning that it is very definitely

subject to the ultra vires doctrine, so

the burden of proof falls upon that

person to prove its right to do

anything, the reverse position of a

natural person, who is innocent until

proven guilty—the end result of this

is that an offence must be proved

beyond reasonable doubt in every respect

before a prosecution brought by a

juristic person can be upheld against

a natural one (i.e. you).

Any natural person (say an

investigator) laying information

before a court on behalf of a juristic

one (say, the CAA) must be duly

authorised. This is Rule 4 (1) of the

Magistrates Courts Rules 1981,

which is in fact an instruction to

officers of those courts to ensure

that such is the case. If he's found

out then (or later) not to be

authorised for any reason, then the

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person who laid the information

could actually be considered to be

the prosecutor, which means the

wrong person is on the charge sheet

and possibly without proper

authority to bring charges anyway.

The ANO consists of Articles and

Schedules, the latter being

amplifications of the former, so

where an Article would require an

aircraft to carry markings, the related

Schedule would spell out how they

are to be made and positioned.

Authorised Persons

An Authorised Person is one who

has been given authority by the CAA

to perform certain functions on its

behalf. Paragraph 15 of Schedule 1

to the Civil Aviation Act 1982 permits the CAA to authorise any

member or employee of it to do so.

Because of the constraints of

subordinate legislation, the activities

of Authorised Persons must be

restricted to those within the CAA's

responsibility, that is, those in

Section 3 of the enabling Act.

CAA Resolution 21, dated 5 June

1975, notes that a quorum for

authorising anyone to perform

functions on its behalf is one

member (a quorum is a minimum

number of people). Therefore, a

minimum of one member of the

Board of the CAA must form a

Board Meeting to do this. Thus, the

appointment of an Authorised

Person must be made by at least one

person authorised to authorise, so to

speak, be it a Board Member or

somebody duly delegated. If the card

carried by the AP does not carry any

proper indication that the authoriser

was in fact so authorised then it may

not be valid (this may sound like a

cheap point, but as the CAA is not a

natural person in its own right, its

range of action is limited without

proper procedures).

To enable it to be produced in Court

as part of a case, that is, to be

admissible evidence, a document must

be properly authenticated.

Paragraphs 16 and 17 of Schedule 1

(of the 1982 Act) provide that a

document received in evidence

should have the seal of the CAA on

it, and that the seal itself is not valid

unless authenticated by the signature

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of the Secretary of the CAA (or

somebody duly authorised by the

Board). In the light of this, unless a

document carried by an alleged AP

has such a seal and signature on it,

and is dated because it is subordinate

legislation, there may be no proof

(acceptable to a court, anyway) that

he is in fact an AP, and therefore

probably should not have wasted

your time asking all those questions

in the beginning.

A constable is an Authorised Person,

but don't forget to ask for his

warrant card or note his collar

number (every policeman has one,

including detectives, so don't let

them tell you otherwise). A

policeman in full uniform is properly

appointed, but if he's not wearing a

hat, or his buttons are undone, his

authority is in question (a motorist

was stopped by two policemen

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without hats, and the charges were

thrown out). He may be from plain

clothes, of course, but "constable" in

the normal sense doesn't usually

mean "detective".

Statements

Statements (made by you) can cause

a problem, especially with reference

to your Common Law Right of

Silence. If given, a statement should

give all relevant points, not just answers

to the investigator's questions, which

may only reflect what he wants to

hear. What is actually relevant is

naturally open to argument, which is

why you should either have expert

assistance or stay silent. Where a jury

is allowed to take notice of your

silence, you could explain that you

were not convinced that such points

were being covered.

As nothing generally happens except

by agreement (which means a

contract is formed), there is an

implication of confidentiality

between you and the interviewer,

essentially meaning that all that is

discussed by yourselves should not

be relayed to third parties—this

includes within the CAA, as they

make copies of everything.

Interviews

These are inquiries to which certain

rules of procedure will apply, on top

of natural justice. "Statutory Inquiry"

is actually defined (in the Tribunals

and Inquiries Act 1971) as "an

inquiry or hearing held or to be held

in pursuance of a duty imposed by a

provision contained in, or having

any effect under, any enactment".

According to Sections 7 (2) and 7

(3)(c) of the 1982 Act, the CAA is in

all civil proceedings a Tribunal

supervised by the Council on

Tribunals. Where the CAA requests

an interview, which is a civil

proceeding, Regulation 25 (2) of the

CAA regulations imposes upon them

a duty to disclose certain

information relevant to those

proceedings beforehand, which

could include copies of the evidence

to which the inquiry relates. Under

Section 12 (1)(a) of the Tribunals

and Inquiries Act, it is the CAA's

duty to furnish a written statement

of its reasons for an inquiry if so

requested at the time notice of the

inquiry is given.

In Canada, tribunals come under

Section 29 (1) of the Aeronautics Act.

Boards of Inquiry are established

under Part I of the Act in several

sections and are subject to the Acts

enabling the TSTS.

280 Operational Flying

Production of Licences

The ANO says that you must

produce your licence to an

Authorised Person within a

reasonable time after such a request

from them. This request must

obviously be made personally,

because you will need to check their

credentials, and because a request to

send your licence somewhere is

actually one to "surrender", which is

not the same thing according to the

1982 Act. The Act itself specifically

mentions "custody", "production"

and "surrender" as three separate

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things, so the intention clearly is to

regard them as such. A "reasonable

time" is as long as it takes to reach

inside your navbag in an immediate

post- or pre-flight situation, or

within five days of the original

request, like for driving licences.

As the Civil Aviation Act only allows

provision by the ANO for access to

aerodromes and places where aircraft have

landed for the inspection of

documents, it’s arguable that

requests for production are invalid if

done at your home, for example. A

constable, of course, can go

anywhere within the limits settled by

the Act and the ANO. In practice,

anyone wanting to see your licences

will actually come and visit you if

you are willing to allow it, but you

may be entitled to payment for your

time, like any consultant, provided

you give advance notice that there

will be a charge.

Log Books

A logbook is your personal and

private property, not having been

issued to you under the ANO

(actually, a Tech Log occupies the

same position). Also, according to

the relevant Article, only two classes

of people are required to keep a

personal flying log book:

· Every member of the Flight Crew

of a UK registered aircraft.

· Regardless of registration, those

qualifying for licence purposes.

The Civil Aviation Act itself doesn't

mention Log Books, except to

mention fleetingly that an Air

Navigation Order is allowed to make

provision for things to be done to

"documents" other than licences,

which presumably includes them.

However, since the word "issue" is

mentioned in the same breath, and

log books aren't issued to you,

maybe it doesn't. In any case, filling

in logbooks is not within the

ordinary meaning of "air navigation".

Actually, the question of logbooks

can provide another useful

illustration of how interpretations of

the law can vary. The ANO says that

everyone required to keep one needs

to produce a personal flying logbook

if requested to do so within two

years of the last entry. Simple

enough, at first sight. But......

One of the defined classes of person

is "every member of the flight crew

of an aircraft registered in the UK".

The definition of "Flight Crew" (Art

129) includes:

“…those members of the crew of the

aircraft (emphasis mine) who

respectively undertake to act as pilot,

flight navigator, flight engineer and flight

radiotelephony operator of the aircraft.”

It could follow, therefore, that to be

flight crew (and therefore subject to

the requirement to produce a

logbook, or maybe anything else for

Legal Stuff 281

that matter) there must be an

undertaking at the moment of the

request for production to act as such

on a particular aircraft, but, even

leaving aside that point, once you've

finished flying and are off duty there

is no longer an undertaking to act as

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flight crew, therefore there’s no

requirement to produce a logbook

when requested (in any case, there

doesn’t seem to be a requirement to

carry a log book in flight). In other

words, as you're only Flight Crew

between chocks away to chocks on

(or rotor start to rotor rundown)

that's when the requirement exists—

the request to produce should be

made between those times (note

that, in some countries, the timings

are between boarding an aircraft

with the intention of flight to when

the engines stop).

Looked at this way, the logbook

referred to could be merely a record

of undertakings to act as flight crew

of a particular aircraft which is

closed after each one and must be

produceable for two years. If so, a

copy of the Tech Log for each flight

will do, if it has your name and

address on it, as per the ANO.

It just goes to show how much care

must be taken both in setting up

laws and reading them—that's why

it's a specialised job to draft Acts of

Parliament.

In Canada, a log book is required

under CARs (401.08(1)), for those

who apply for or hold any flight

crew permit or rating, which also

sets out particulars of what’s

supposed to be in it. Its production

on request then flows from the

requirement to maintain one to

prove experience and recency.

Prohibited Airspace

This may only be created by the

ANO itself; the 1982 Act permits

aircraft to be stopped from flying

over such areas as may be specified

in the Order. It also allows the ANO

to provide for exemptions, so, unless

specified in the ANO, or exempt

under the terms given in it,

prohibited airspace does not exist.

Mere "notification" of its existence

may not be enough.

Commercial Air Transport?

WARNING! This is complicated

and causes acute brainfade!

Public, or Commercial, Air

Transport is defined in the ANO as

being where valuable consideration

is given (or promised) for the carriage

of passengers or cargo on a flight (it

actually says in the aircraft on that flight,

but you know what I mean). Aerial

work is anything else for which

valuable consideration is given.

In addition, it covers anyone or

anything that may be carried free on

that flight, not being employees of

any air transport undertaking that

may be operating it (although it

looks as if it's worded otherwise,

company directors and anyone

working on behalf of the CAA, such

as Authorised Persons and TREs,

are employees for this purpose).

Thus, if you carry a passenger (say, a

friend) on a check flight who is not

an employee or a director of your

Company, it will be regarded as

Public, or Commercial, Air

Transport, even though valuable

consideration is not promised or

given. In the USA, even if you do a

job for charity that only gives you a

282 Operational Flying

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tax break, and even if you don’t take

advantage of it, that’s the equivalent.

If the valuable consideration allows a

particular person to fly an aircraft,

then that is also Public Transport

(unless it's being bought on HP or a

conditional sale agreement).

Presumably this is meant to cover

self-fly hire, or maybe trial lessons,

since the phrase used is "fly the

aircraft" rather than "fly in the

aircraft". Although that person may

not be an employee of the operating

organisation, crews are not

passengers (although they may be for

insurance purposes, so I don't see

where this one fits in, as CAT only

exists when passengers or cargo are

carried for valuable consideration).

However, these clauses are the only

ones to affect the average

professional. Otherwise, in broad

terms, you are allowed to win prizes

in air races (up to certain limits) and

recover direct costs and a pro rata

contribution to the amount of hours

flown every year if you go to air

shows and the like. If a payment is

made to a (registered) charity (with

CAA permission) that allows

someone (maybe a prizewinner) to

fly, that is a private flight. Equal

contributions to the direct costs of a

flight borne by the pilot if up to four

persons (including the pilot) fly in an

aircraft are exempt, but direct costs

do not mean HP payments,

insurance, hangarage.....

There must also have been no

advertising for that flight, except in

the confines of a flying club, in

which case all passengers (over 18)

must be members. It also helps if the

pilot is seen not to be employed as

such (this situation is what anyone

else would call "cost-sharing"). A

similar situation exists where a pilot

reclaims direct expenses paid out on

behalf of an employer. There are

other exemptions, such as joint or

company owned aircraft.

Remunerated parachute dropping

(and positioning for it) is regarded as

aerial work.

In Canada, a Commercial Air Service

means any use of aircraft for hire or

reward, and different regulations

apply for aerial work, air taxi,

commuter or airline operations. An

Air Transport Service means a

commercial air service operated to

transport persons, their belongings,

baggage, goods or cargo in an

aircraft between two points (does

this mean that if you take off and

land from the same place you’re not

an Air Transport Service?).

Let's have a closer look at the words

"valuable consideration" as an

example of not-so-good drafting.

The word "consideration" means

money or something of money's

worth that is more than merely

nominal. It is legal expression

referring to something that is used to

bind a contract, even the chocolate

wrappers sent in to a manufacturer

to obtain a free gift.

The word "consideration" by itself

would have been enough, but

somebody saw fit to add "valuable"

in front of it, which changes the

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position somewhat, because now

everybody has to rush around trying

to decide what that particular word

means and subsequently how

valuable should consideration be to

qualify for the ANO?

The actual definition there comes

from the 19th Century, which reads:

Legal Stuff 283

"any right, interest, profit or benefit,

forbearance, detriment, loss or

responsibility accruing, given, suffered or

undertaken pursuant to an agreement,

which is of more than a nominal

nature."

Try this instead:

"Money or money's worth, which is more

than merely nominal (i.e. wrappers),

including the release of debts, meaning

money or anything capable of being

turned into money, possibly including

some services which cannot."

The real problem with this, though,

lies with insurance. You may (or may

not) know that there is no such thing

as a "contract" of insurance, because

you are betting; in this case, that you

crash your aircraft before a certain

date. The insurance people, of

course, are betting that you don't (or

is it the other way round?).

The trouble is that insurance

companies are well known not to

pay if they can get away with it, so if

they can prove that you were doing

illegal Public Transport, you may

well find that your insurance is

invalid as well, not to mention being

caught for third-party liability in

some cases. Anyway, back to the

subject. The ANO (Art 6) says that

an Air Operator's Certificate is needed

for all flights that may come under

the definition of Public Transport:

"an aircraft registered in the United

Kingdom shall not fly on any flight for

the purpose of public transport, otherwise

than under and in accordance with the

terms of an air operator's certificate

granted to the operator….".

Article 6 was originally Article 3A of

the ANO 1960, and was inserted as

an afterthought to it to cover AOCs

that would be unenforceable during

the time gap until section 1 (2) (a) of

the coming Civil Aviation

(Licensing) Act 1960 came into force

on 30 March 1961. This section was

later repealed by the 1972 Act, so

from that time the ANO could no

longer legally make provisions for an

AOC with enforceable terms. In

other words, an AOC is not made by

statutory instrument.

The 1982 Act says that only

statutory instruments can establish

enforceable terms; in other words,

no enforceable law (that is, by

criminal proceedings) can be made

below the level of a statutory

instrument, which of course an AOC

is not. AOC terms are laid down by

the CAA, which cannot issue SIs.

By the way, the term "operator"

above has been held by leading

counsel to include the pilot (any

person with the management for the

time being of an aircraft is regarded

as being the operator). Reference to

Road Transport Acts shows that if it

had been intended that a "driver"

was not to be an "operator", then