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Can pilots cope with regulatory freedom?

Mooney_Driver wrote:

I think this whole thing comes from the overregulation which for a while dominated GA to the point where the premis “what is not prohibited is allowed” turned upside down to “what is not explicitly allowed must be prohibited”.

And yet, in a recent FB discussion, you were advocating stricter rules on cost sharing flights and applauded the notion ob “bad handwork” written down in Air Ops regulations. How did you come to the conclusion, more rules would be necessary? That is, what puzzled me in the first place, especially by you who seem to constantly moan about alleged “overregulation” and “defunct” regulations. This doesn’t add up to me. Could you explain?

Jujupilote wrote:

In the clubs I know, people are taught one way of doing things, how could they understand different from ‘all others ways are forbidden’ ?

I think you’re giving the average pilot (you essentially) not enough credit. If, out of ignorance, fear or wrong teaching, these pilots act along what they have been taught, it would be understandable. But this isn’t what I was describing: People do read the regs, or have them explained and come to the conclusion, that the responsibility or freedom would be too much to ask of the pilot and request “better”, i.e. more stringent rules for anyone: Some are uneasy with unequal shares on cost-shared flights and demand regulation, so that everyone has to pay fair share. Some are uneasy with flying IFR in airspace G, so they demand it should be prohibited. Some are too afraid to join a traffic pattern based on traffic and demand a fixed entry procedure for every airport. I could o on for hours. And it’s never thir behaviour, they want it for anyone else.

Peter wrote:

The school aeroclub environment does tend to keep people in their place

I think that was not consensus in that thread. Quite the opposite.

mh
Inside the sky.
EDXE, EDXF, Germany

Mooney_Driver wrote:

Picture a woman doing the laundry in a common laundry room on a Saturday afternoon. In comes a neighbour and shouts at her for violating some section of the house order which sais that washing on the weekend is prohibited

Ah, dear Switzerland! If there is one thing that crystalises Switzerland in my mind, it is lawn mower bans on Sunday and community enforcement of such petty rules!

EGKB Biggin Hill

mh wrote:

And yet, in a recent FB discussion, you were advocating stricter rules on cost sharing flights and applauded the notion ob “bad handwork” written down in Air Ops regulations. How did you come to the conclusion, more rules would be necessary?

I must have made a right mess of this answer if that is how it was understood, my apologies for that. If I remember right, the post I was referring to was about ambiguously written regulation which some people see as freedom and others as a problem, because they are open to often diametrically different interpretation, particularly if a case goes to court. That is a problem which I can relate to for several reasons. Badly (ambiguous) written legislation or regulation will almost always end up being discussed to death and in the end you only get a decision you can rely on once a supreme court verdict is there, which hardly ever happens. I know several examples for such legislation, where freedom was actually curtailed or the intention put in question when discussed in forums and, worse, when a case gets debated in court.

Brutally said, the “best” regulation is one which is clear, to the point and does not allow interpretation at all. This may well actually increase freedom rather than curtail it. One example is the never ending discussion about language proficiency particularly in France, which initially lead to a massive insecurity about what is really required. While some claim that the text is clear, most lawyers I talked about it say it is badly written as it allows too much interpretation. To this day, there is no clear ruling on this, other than the absence of ruling because the issue has never been pursued to a court.

A case which opened my eyes to just how ambiguous courts can rule was the case of a collision between two planes where both pilots survived. The report described in great detail how difficult it was for the two planes to see each other and concluded that despite that, the reason was lack of airspace surveillance and lack of proper means. The court took exactly one sentence of the whole report and convicted BOTH pilots for negligence in airspace surveillance to hefty fines. The appeals court upped the fines. Not only was this case a brutal reminder that just culture has no place in the court system but it has perverted Annex 13 to a degree I never thought possible.

Another case which now makes huge noise was the one of a air traffic controller who inadvertedly cleared two planes for take off, realized his mistake and aborted one of them in time to avoid a collision. Nevertheless he was convicted of gross negligence and statements which he had given for the accident investigation were used to convict him, again a brutal violation of Annex 13 by the court.

In that facebook discussion, the other poster basically stated that while regulation says one thing, you can never be sure what it will actually mean until someone has been convicted or freed of charge in apparent violation of it. In other words, in the theme of cost sharing, while one court in Denmark has decided one thing, there is no guarantee that in case of cases a court in Germany or Switzerland or Britain will decide the same thing.

At least in the case of the LP and the case of cost sharing, the law could have been clearer written to make sure that these kind of ambiguous interpretation is not possible. That would actually have made things easier, not more difficult. The more interpretation is possible, the larger is the risk that a court will take this to extremes. And seeing how prosecutors these days take interest in every incident and accident published, this makes the situation for pilots (but not only pilots) very difficult indeed.

My primary beef with the Annex 13 violation in Switzerland is that it totally undermines Just Culture and error reporting on a volonary basis. It has been made clear that in most of these cases you will be in the position to prove your innocence, not the court will prove you guilty, the load of evidence is almost entirely put on your shoulders. That is violating human rights if you look at it closely.

So my conclusion was that it is better if regulation is written so that there is no room for interpretation, for the protection of the pilots and ATCO´s and who ever stands accused in a court of law. Otherwise, the interpretation of the case may well end up being the law in a much different way than it was intended.

LSZH, Switzerland

Mooney_Driver wrote:

One example is the never ending discussion about language proficiency particularly in France

Prime example for what is being discussed here. Only in Switzerland, people think this is not clear. It is Swiss pilots reading the very clear FCL.055 thinking “but we have always required one exam per language, why should an English LP give me the right to do the radio in French, this is not logical”, who are longing for stricter rules despite a very clear legal text. And the Swiss FOCA emitting notes that for THEIR purposes, you must have one LP in each language despite what the law says.

No other country has a problem with this.

Mooney_Driver wrote:

If I remember right, the post I was referring to was about ambiguously written regulation

It still isn’t ambiguous:

4a. By way of derogation from Article 5(1) and (6), the following operations with other-than complex
motor-powered aeroplanes and helicopters, balloons and with sailplanes may be conducted in
accordance with Annex VII:
(a) cost-shared flights by private individuals, on the condition that the direct cost is shared
by all the occupants of the aircraft, pilot included and the number of persons sharing the
direct costs is limited to six

Therein you find everything, the EASA intended to write down. They even doubled down here meetings_0.zip:

- Cost-shared flights
EASA asked MSs if there was a common understanding of sharing the costs in their countries. In one MS, it was understood as contribution in a fair way. In another MS, their national rules stated “equal shares”. The word “equal” disappeared from the OPS rules.
EASA explained the rationale behind the exemption made for cost-shared flights: the way in which the costs were actually shared did not affect the safety of these flights. They were considered not to pose a significant risk, therefore it had been agreed to put them under an exemption

Mooney_Driver wrote:

Brutally said, the “best” regulation is one which is clear

How clearer can they ever be? Why are you asking to fill the regulation with complete unnecessary restrictions?
Plus: There is a court rule about this with a crystal clear outcome.

Mooney_Driver wrote:

In that facebook discussion, the other poster basically stated that while regulation says one thing, you can never be sure what it will actually mean until someone has been convicted or freed of charge in apparent violation of it. In other words, in the theme of cost sharing, while one court in Denmark has decided one thing, there is no guarantee that in case of cases a court in Germany or Switzerland or Britain will decide the same thing.

So basically you think the EU-Members aren’t Rechtsstaaten? That is obvious BS and he could not provide one example where a pilot got convicted for following the rules. How could a court judge other than what the legislation explicitly prescribes? Or other way round: If you follow the law, you won’t be convicted.

So why do you call for more unneccesary regulation here? Especially since it won’t affect you anyway (you have let your SEP lapse and said in the past, you don’t do cost sharing flights anyway?

You can always live out of fear of some arbitrary ruling sovereign. But that is not how our societies work. If it were so, you’d just omit any written rules, because in your view they can all be overturned by some angry judge. Our courts are no kangaroo courts.

Mooney_Driver wrote:

A case which opened my eyes to just how ambiguous courts can rule was the case of a collision between two planes where both pilots survived.

Please provide a link.

Thank you. Mooney_Driver wrote:

At least in the case of the LP and the case of cost sharing, the law could have been clearer written to make sure that these kind of ambiguous interpretation is not possible. That would actually have made things easier, not more difficult

So you don’t want freedom. You want regulation.

Last Edited by mh at 08 Jan 16:57
mh
Inside the sky.
EDXE, EDXF, Germany

Especially since it won’t affect you anyway (you have let your SEP lapse and said in the past, you don’t do cost sharing flights anyway?

One should not personalise arguments. Not everyone argues purely for themselves. If I was doing that, EuroGA would have never come into existence, and neither would this (and other informative GA websites) before that.

Administrator
Shoreham EGKA, United Kingdom

Peter wrote:

One should not personalise arguments. Not everyone argues purely for themselves.

True, but to argue against other pilots freedom and not being affected always has a little Geschmäckle.

mh
Inside the sky.
EDXE, EDXF, Germany

Googling on that yields something offensive:

Gschmäckle is the Swabian verniedlichungs form of taste, identical with the High German word, but in the special meaning of an alien, suspicious, not belonging taste or smell. The term is used in particular for a flavor of food and drink or a foul odor, and is used in a figurative sense for peculiarity, specific, other conspicuous and obnoxious or ridiculous manner of an individual or class.
In this sense, all kinds of processes associated with corruption , felt , patronage or the like are referred to. These things have a Gschmäckle , they are simply disreputable in High German. Not infrequently, these dubious events relate to early stages of bribery and are therefore u. a. themed in the context of administrative ethics.

Was that intended?

Administrator
Shoreham EGKA, United Kingdom

Yes, although it is usually not understood as harsh as it is explained in your text.

mh
Inside the sky.
EDXE, EDXF, Germany

This is then a good example of cultural differences which some posters need to be aware of before pressing the Submit button. Not exactly the first time we have had that here.

That text is not mine. It is from the German wiki entry, and the google translation is pretty clear.

Administrator
Shoreham EGKA, United Kingdom
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