Hong Kong Aircrew Officers Association v. The Director-general of Civil Aviation and Another

HCAL 96/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 96 OF 2008

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BETWEEN

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Before: Hon A Cheung J in Court

Dates of Hearing: 15 and 16 June 2009

Date of Judgment: 6 July 2009

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J U D G M E N T

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Background

1.In this application for judicial review, the applicant challenges the decision of the respondent to authorise the operation of Flight CX168 from Melbourne, Australia to Hong Kong on 27 February 2008 with only two flight crew members (instead of three).  The applicant argues that the respondent had no power to make the decision, which was therefore unlawful.  Alternatively, the applicant contends that the decision was irrational.

2.The applicant is a body incorporated under the Trade Unions Ordinance (Cap 332) to represent the rights and interests of aircrew officers employed by Cathay Pacific Airways, the interested party in these proceedings.

3.Flight CX168 was scheduled to operate overnight from Melbourne to Hong Kong on 27 February 2008.  It was scheduled to fly with a sector length of 9 hours 10 minutes.  Sector length (or sector time) means the time between when an aircraft first moves from its parking position until it next comes to rest, after landing, on the designated parking position.  Moreover, since it was an overnight flight, the sector was to extend through the period 0200-0559 hours at the local time where the flight was to begin.  In those circumstances, the relevant rules, which I will examine in greater detail, required the flight to have a flight crew of three.

4.The flight was scheduled to depart Melbourne at 2220 (Hong Kong time).  However, at 1614 (Hong Kong time), one of the two first officers reported sick.  Cathay Pacific contacted three possible replacement third pilots, but the attempts were unsuccessful.

5.Cathay Pacific’s crew control also contacted the captain of the flight (Captain Carr) as well as the other first officer (First Officer Day) to ascertain if they were prepared to fly the aircraft by themselves under a variation/dispensation of the three-man crew requirement from the Civil Aviation Department (CAD).

6.Furthermore, Cathay Pacific contacted Captain Davis of the CAD about a possible CAD variation/dispensation.  Captain Davis is and was a flight operations inspector employed by the CAD and his duties include monitoring and regulating the flight standards of flight crews and cabin crews and the implementation of Annexes 1, 6 and 13 of the Standards and Recommended Practices of the International Civil Aviation Organisation (ICAO) in accordance with the ICAO’s established policy.

7.After several telephone conversations in Hong Kong and Melbourne, both Captain Carr and First Officer Day were prepared to pilot the flight with a two-man crew, and Captain Davis was agreeable to grant Cathay Pacific the necessary variation/dispensation to allow the flight to be operated without a third pilot.

8.The flight departed Melbourne as scheduled and safely arrived in Hong Kong without incident.  But the applicant, representing the interest of aircrew officers, is concerned that the safety of the aircraft and its passengers has been compromised by the decision to permit the flight to be operated without a third pilot as was required by the relevant rules.  It is also concerned that similar incidents may happen in future, although the Court has been given to understand that thus far, the incident in question remains the first and only incident of the type under consideration.

9.After seeking clarification with the CAD regarding the legal basis upon which the variation/dispensation was granted, the applicant applied for leave to apply for judicial review on 26 August 2008.  In view of the time taken to obtain clarification from the CAD regarding the legal basis of the decision under challenge, the Court was prepared to extend the time to apply for leave.  It also granted leave to apply for judicial review.  Cathay Pacific has since joined in the proceedings as an interested party.

Legal framework

10.It is necessary first to look at the regime governing the number of aircrew members required to pilot a flight, and the rationale behind the relevant requirements.

11.Civil aviation is specifically dealt with by Section 4 in Chapter V of the Basic Law.  Article 128 provides that the Government of the Hong Kong Special Administrative Region shall provide conditions and take measures for the maintenance of the status of Hong Kong as a centre of international and regional aviation.  Article 129 requires Hong Kong to continue the previous system of civil aviation management in Hong Kong.

12.Civil aviation in Hong Kong is governed by the Civil Aviation Ordinance (Cap 448) and the subsidiary legislation thereunder made by the Chief Executive in Council.  The Air Navigation (Hong Kong) Order 1995 (as amended), although made before 1997 as an Order in Council pursuant to the Civil Aviation Act 1949 (as extended and amended), continues in force after 1997 by virtue of section 15(4)(a) of the Ordinance and is deemed for all purposes to have been made by the Chief Executive in Council pursuant to the principal Ordinance.

13.Amongst other things, the 1995 Order deals with, in Part VI, fatigue of crew.  It applies in relation to any aircraft registered in Hong Kong which is either engaged on a flight for the purpose of public transport, or operated by an air transport undertaking: section 53(1).

14.As Hartmann J (as he then was) explained in Cathay Pacific Airways Flight Attendants Union v The Director-General of Civil Aviation HCAL 19/2005, 25 August 2005 (affirmed on appeal: [2007] 2 HKLRD 668):

“1.  Passenger aircraft today are capable of attaining great distances, crossing multiple time zones in their flight.  But, while aviation technology advances, human physiology does not.  It is recognised, especially in respect of long haul routes, that aircraft crews face the constant challenge of fatigue.  This is more than mere tiredness.  As it relates to aircraft crews, fatigue is invariably the result of having to endure prolonged periods of active performance or vigilance when the body’s circadian rhythms are disrupted.  Circadian rhythms dictate patterns of wakefulness and sleep and do not adjust rapidly to change.  The effect of the disruption is what the layman calls jet lag.

2.  To avoid fatigue in the crew of Hong Kong registered passenger aircraft, the Director-General of Civil Aviation is obliged by law to ensure that the operators of passenger aircraft establish and enforce schemes to ensure that adequate periods of rest are given to aircraft crews.  These periods of rest are both between flights and, when necessary, during flights.”

15.The necessary legal framework is found in sections 54 and 55 in Part VI of the 1995 Order:

“54.  Fatigue of crew – operator’s responsibilities

(1)  The operator of an aircraft to which this Article applies shall not cause or permit that aircraft to make a flight unless:

(a)  he has established a scheme for the regulation of flight times for every person flying in that aircraft as a member of its crew; and

(b)  the scheme is approved by the Chief Executive subject to such conditions as he thinks fit; and

(c)  either –

(i)  the scheme is incorporated in the operations manual required by Article 25 of this Order, or

(ii)  in a case where an operations manual is not required by that Article the scheme is incorporated in a document, a copy of which has been made available to every person flying in that aircraft as a member of its crew; and

(d)  he has taken all such steps as are reasonably practicable to ensure that the provisions of the scheme will be complied with in relation to every person flying in that aircraft as a member of its crew.

(2)  The operator of an aircraft to which this Article applies shall not cause or permit any person to fly therein as a member of its crew if he knows or has reason to believe that that person is suffering from, or, having regard to the circumstances of the flight to be undertaken, is likely to suffer from, such fatigue while he is so flying as may endanger the safety of the aircraft or of its occupants.

....

55.  Fatigue of crew – responsibilities of crew

(1)  A person shall not act as a member of the crew of an aircraft to which this Article applies if he knows or suspects that he is suffering from, or, having regard to the circumstances of the flight to be undertaken, is likely to suffer from, such fatigue as may endanger the safety of the aircraft or of its occupants.

(2)  A person shall not act as a member of the flight crew of an aircraft to which this Article applies unless he has ensured that the operator of the aircraft is aware of his flight times during the period of 28 days preceding the flight.”

16.The function of the Chief Executive is performed by the Director-General of Civil Aviation, who is authorised by the Chief Executive for that purpose pursuant to article 98(1) of the 1995 Order.  Cathay Pacific, being a local aircraft operator, has to comply with the requirements in article 54.  Amongst other things, Cathay Pacific has to have an approved scheme for the regulation of flight times for every person flying in its fleet of aircrafts as a crew member.

CAD 371

17.On its part, the Director-General has prepared a set of “administrative rules”, known as CAD 371, to set out its policy in relation to its power to approve an aircraft operator’s scheme for the regulation of the flight times of its crews (a FTL Scheme).  As Hartmann J further explained in Cathay Pacific,

“36.  While it can sometimes be difficult to ascertain where delegated legislation begins and ends, I am satisfied that CAD 371 is not, nor can it be deemed to be, legislation of any kind.  It may be said that CAD 371 contains administrative rules but, if so, they are not rules of law.  The fact that actions of the Director-General in respect of CAD 371 may, for the reasons given earlier in this judgment, be subject to judicial review goes no way to elevating CAD 371 into a document of legal effect.  CAD 371 may be ignored entirely by an operator without subjecting the operator to any legal liability.  All it means is that the operator is almost bound to be unsuccessful in seeking the Director-General’s approval for any scheme proposed by him pursuant to art.54(1) of the Air Navigation Order.

37.  Nor, in my view, although the matter was never specifically raised in argument, can it be said that the Director-General, having devised his policy and stated it in a public document, is thereby in some way estopped from changing it.  If in good faith the Director-General is of the view that his policy must be changed then he is duty bound to make that change.  As Lawton LJ said in Laker Airways Ltd v. Department of Trade [1977] 1 QB 643, at 728F : “Estoppel cannot be allowed to hinder the formation of government policy”.

38.  As to the manner in which the Director-General may change his policy, it seems to me that he may do so in any rational manner that he wishes.  He devised the policy.  It is his policy.  If in good faith, for purposes of good governance, he is of the view that it must be changed then he may change it.  While obviously the change must be made known to those who may be affected by it, I do not see that he is constrained by any particular formality in affecting change.  Nor do I see that he is obliged to obtain any form of consensus on the part of those who may be affected.  Consensus may simply not be possible.”

18.CAD 371 is an elaborate document, devoting itself entirely to the topic of avoiding fatigue in aircrew members.  It comprises 32 Sections, and runs to 48 pages.  Very detailed requirements are set out in the document.  Needless to say, it is revised from time to time.

19.Paragraph 2.1 in Section 2 of CAD 371 sets out the objectives of approved FTL Schemes:

“2.1  The objectives of a FTL Scheme are to ensure that crew members are adequately rested at the beginning of each flight duty period (FDP), and that the duration and timing of individual duty periods will enable them to operate to a satisfactory level of efficiency and safety in all normal and abnormal situations.  The standard provisions set out in this document are therefore concerned solely with the prevention of fatigue and the maintenance of vigilance in flight.  They are not intended to take account of commercial circumstances (including crew member basings), social considerations or lifestyle.”

20.Most importantly for our present purposes, Section 11 sets out the requirements for the number of pilots on board an aircraft:

“11.   TWO AND THREE CREW AIRCRAFT – NORMAL OPERATIONS

For application of the provisions of this Section to cabin crew.  See Section 32.

All operations other than two crew aircraft Ultra Long Range Operations (see Section 12).

11.1     Standard Flight Duty Period [FDP] – Acclimatised Flight Crew

11.1.1    Table “A” below shall be used to determine the standard FDP for acclimatised flight crew of two and three crew aircraft.

Table “A” – Standard FDP for Acclimatised Flight Crew

Local time of Start	Sectors
1	2	3	4	5	6	7	8 or more
0700-0759	13	12¼	11½	10-	10	9¼	9	9
0800-1259	14	13¼	12½	11-	11	10¼	9½	9
1300-1759	13	12¼	11½	10-	10	9¼	9	9
1800-2159	12	11¼	10½	9-	9	9	9	9
2200-0659	11	10¼	9½	9	9	9	9	9

NOTE:     1.  If the planned FDP for a two crew aircraft includes a scheduled sector length in excess of 9 hours (8 hours if the sector extends through or ends within the period 0200 – 0559 hours at the local time where the FDP commenced), one additional pilot must be boarded who meets the Relief Crew Qualifications stated in Paragraph 9.

2.  For the maximum FDP following a reduced rest period see para 21.3.2”

21.The present case concerns an acclimatised flight crew.  “Acclimatised” is defined in para 7.1 of CAD 371.  Essentially, if a flight crew member ends a duty period at a place where local time differs by more than three hours from his home base, he shall straightaway be considered as “unacclimatised” for the purposes of an operator’s approved scheme.

22.The flight in question involved only one “sector”, that is to say, between Melbourne and Hong Kong, there was to be no intermediate stop.  Thus according to Table A, as the flight was to commence at 0120 Melbourne time (ie 2220 Hong Kong time), the standard flight duty period (FDP)[1] was to be 11 hours.  In other words, counting from the time when the aircrew members were required by Cathay Pacific to report for the flight to the finishing of the flight duty period[2], the maximum time permitted, according to Table A, was to be 11 hours.

23.However, note 1 to Table A applied to the flight.

24.Unlike the FDP, sector length which note 1 refers to means the time between when an aircraft first moves from its parking position until it next comes to rest, after landing, on the designated parking position (para 7.22).  In the present case, Flight CX168 had a scheduled sector length of 9 hours 10 minutes, in the sense that the rostered sector length was 9 hours 10 minutes.  Furthermore, the sector was to extend through the period 0200-0559 hours at the local time where the FDP was to commence.  In those circumstances, note 1 required the presence of an additional pilot on board; in other words, a three-man crew was required.

25.The period 0200-0559 referred to in note 1 reflects the so-called “Window of Circadian Low” (WOCL).  Circadian physiology refers to body functions that are controlled by internal biological clocks.  Such clocks are related to periods of alertness and periods of dullness and are marked by swings in body temperature.  The Window of Circadian Low refers to the period of least effectiveness when the body temperature is at its low point.

26.Thus when a sector extends through or ends within the Window of Circadian Low, 8 hours, instead of 9 hours, is the maximum scheduled sector length permissible under note 1 to Table A for a two member aircrew.

Cathay’s approved scheme

27.Cathay Pacific has, pursuant to article 54(1)(a) of the Air Navigation (Hong Kong) Order 1995, established a scheme for the regulation of flight times for its crew members in its fleet of aircrafts, which is based on the provisions and requirements in CAD 371.  The scheme has been approved by the Director-General.  It has been incorporated in the Operations Manual of Cathay Pacific.  Section 15 of Cathay’s approved scheme sets out in para 15.1 the maximum allowable standard FDP for acclimatised flight crew by reference to a Table A, which is based on Table A in CAD 371.  Para 11.1.1, note 1 to Table A in CAD 371 appears as para 15.4 in Cathay’s approved scheme.

28.As noted, article 54(1)(d) requires Cathay Pacific to take all such steps as are reasonably practicable to ensure that the provisions of its approved scheme will be complied with in relation to every person flying in its aircrafts as a crew member.

First issue: authority

29.The first issue raised in this application for judicial review is whether the Director-General has authority to vary, dispense with or otherwise exempt Cathay Pacific from the requirements in para 11.1.1 note 1 in CAD 371 and para 15.4 in Cathay’s approved scheme to have a third pilot on board Flight CX168, and if the answer is ‘yes’, the source of that authority.

30.That Cathay Pacific itself does not have such authority is common ground.  Although there are provisions in Cathay’s Operations Manual, Vol 2, Part 2, Appendix A dealing with operations dispensation procedures and control, which provide for operating a flight outside the requirements of Cathay’s Operations Manual by means of an “operations dispensation”, it is clear that the authority of Cathay to issue an operations dispensation in-house does not extend to any departure from the requirements in Cathay’s approved flight time limitations scheme.  Annex A specifically provides that the flight operations inspector of the CAD must be advised, and authorisation obtained, prior to issue of an operations dispensation which is outside the requirements of the 1995 Order (para 3.9A).  That was why Captain Davis was contacted by Cathay Pacific for authorisation to depart from the requirement of a three-man crew for Flight CX168 in the evening in question.

31.Did Captain Davis have the necessary authority to grant the variation/dispensation/exemption?  As noted, Cathay Pacific has the duty to ensure that the provisions of its approved scheme are complied with under article 54(1)(d).  It is a legal requirement and a statutory duty.  Any authorisation to depart from the requirement must therefore be based on statute or something built into the approved scheme itself.

Article 95

32.First, statute.  In this regard, both Mr Anthony Ismail, appearing for the Director-General, and Mr Alexander Stock, acting for Cathay Pacific, rely on articles 95 and 98(11) of the Air Navigation (Hong Kong) Order 1995.

33.Article 95 reads:

“The Chief Executive may exempt from any of the provisions of this Order (other than Articles 84 and 96 thereof) or any regulations made thereunder, any aircraft or persons or classes of aircraft or persons, either absolutely or subject to such conditions as he thinks fit.”

34.Counsel’s argument is straightforward enough.  The Chief Executive[3] may exempt Cathay Pacific from the provisions of the 1995 Order in relation to Flight CX168.  Specifically, Mr Ismail submits, Captain Davis can exempt Cathay Pacific from its statutory responsibility under article 54(1)(d) to take steps to ensure that the provisions of its approved scheme are complied with in relation to Flight CX168, thereby allowing the flight to be operated by only two pilots.

35.Mr John Scott SC (Mr John Hui with him) submits on behalf of the applicant that article 95 only entitles the Director-General to exempt Cathay Pacific from, inter alia, the specific statutory obligations stipulated in article 54.  For example, counsel submits, the Director-General may exempt Cathay Pacific from being required to establish an approved scheme or from incorporating the approved scheme into its Operations Manual.  In contrast, counsel contends that the Director-General has no power under article 95 to vary or dispense with a specific provision in an approved scheme which has already been incorporated in Cathay Pacific’s Operations Manual.

36.I do not accept the contention.  The wording of article 95 does not support the argument.  The exemption that may be granted applies to “any of the provisions” of the 1995 Order.  That must include all provisions in article 54, including those in article 54(1)(d).

37.Furthermore, article 95 refers to an exemption being granted in respect of “any aircraft or persons or classes of aircraft or persons”.  In other words, an exemption may be very general in nature, covering classes of aircraft or persons.  Or it may be very specific, covering only a particular aircraft or a particular person.

38.As a matter of legislative intent, I also find it unattractive the argument that nobody can authorise any departure from the general requirements laid down in the 1995 Order in any circumstances.  This is so particularly bearing in mind the subject matter of the Order, namely the civil aviation industry.  Practical considerations, changes in circumstances, exigencies and advances in technology, just to name a few, are potential reasons for the need of a power on the part of the Chief Executive or CAD to permit, where appropriate, departure from the general requirements laid down in the Order itself or in an approved scheme established pursuant to article 54.

39.Mr Scott also submits that article 95 does not apply because the departure in the present case was a departure from the requirements in para 15.4 of Cathay’s approved scheme.  It was not a departure from any provisions in the 1995 Order.  Therefore article 95 dealing with exemption from compliance with the provisions in the 1995 Order is simply irrelevant.

40.Again, I reject the argument.  Cathay’s proposed departure from the requirements in para 15.4 of its approved scheme would amount to a contravention of article 54(1)(d), which requires Cathay to take all such steps as are reasonably practicable to ensure that the provisions of its approved scheme are complied with in relation to every person flying in the aircraft in question as a member of its crew.  There was, therefore, a need for an exemption from the requirement under article 54(1)(d) in order for Cathay to fly Flight CX168 lawfully.  In my view, article 95 applied to such a situation.

Article 98(11)

41.Mr Ismail (and Mr Stock as well) also rely on article 98(11) to justify Captain Davis’ decision.  Article 98(11) reads:

“(11) (a)  Any power conferred by this Order to issue, make, serve or grant any instrument shall be construed as including a power exercisable, in the like manner and subject to the like conditions, if any, to vary, revoke, cancel or otherwise terminate the instrument.

(b)  In this paragraph “instrument” includes any regulations, direction, instruction, rule or other requirement, any notice and any certificate, licence, approval, permission, exemption, authorization, log book record or other document.”

42.Mr Ismail’s main submission is that article 98(11) applies to a situation of the present type.  Although counsel has sought to articulate his argument in several different ways, in my view, it all boils down to this: the Director-General has power under article 54(1)(b) to approve an aircraft operator’s flight time limitations scheme subject to such conditions as he may think fit.  The power of approval carries with it the power to require an aircraft operator only to operate its aircrafts in accordance with the flight time limitations that the Director-General requires (which he has set out in CAD 371).  In those circumstances, the relevant provisions in an approved scheme simply represent, in substance, the requirements of the Director-General in respect of flight time limitations.  Article 98(11)(a) provides that where any power is conferred by the 1995 Order to “issue, make, serve or grant any instrument”, it includes a power “to vary, revoke, cancel or otherwise terminate the instrument”.  And importantly, “instrument” is defined to include “any regulations, direction, instruction, rule or other requirement”.  In other words, a requirement is an instrument.  More specifically, a requirement that an aircraft must be manned by three pilots instead of two under certain circumstances is a requirement or “instrument” within the meaning of article 98(11)(a) of the 1995 Order.  It is a requirement/instrument issued by the Director-General, and pursuant to article 98(11)(a), he has the power to vary, revoke, cancel or otherwise terminate it.  In other words, the Director-General has the power to dispense with compliance with the three-man crew requirement in relation to Flight CX168.

43.Mr Scott argues that article 98(11) only gives the Director-General the power to “vary, revoke, cancel” or “terminate” the approval of the approved flight time limitations scheme submitted by Cathay Pacific.  That is the totality of the Director-General’s power – it does not include the power to dispense with the application of a specific provision in the approved scheme.

44.Counsel also argues that in any event, there was no variation, revocation, cancellation or termination of any requirement in the present case.

45.As a further alternative, counsel argues that any variation etc was only in relation to the requirements in Cathay Pacific’s approved scheme which were not requirements issued or made pursuant to any power under the 1995 Order.

46.I do not accept counsel’s arguments.  In my view, the wording of article 98(11) is sufficient to cover the situation in question.  The definition of “instrument” is adequate to cover the requirements set out in an approved scheme.  As a matter of substance and in reality, an aircraft operator has no free choice regarding the provisions in its scheme.  They must follow the requirements of the Director-General, who has the power to approve or disapprove the operator’s scheme.  The provisions in an approved scheme simply represent, in substance, the requirements of the Director-General as set out in CAD 371.  This being the case, the Director-General also has, in accordance with the wording of article 98(11)(a), the power to vary, revoke, cancel or otherwise terminate those requirements.  The article does not require a variation to be general in nature.  It can be case-specific, applying to one particular flight.  Article 98(11)(a) is not limited to a general variation. Nor is there any reason to require the article to be so interpreted.  To the contrary, the provisions should be interpreted to give maximum flexibility to the Director-General to cater for the needs and requirements of the civil aviation industry.

47.As to Mr Scott’s point that what was being dispensed with was a specific requirement in Cathay’s own approved scheme, which was not made pursuant to the powers contained in the 1995 Order, it need only be repeated that the provisions in Cathay’s approved scheme simply represent the requirements of the Director-General imposed pursuant to the approval requirement provided in article 54(1)(b) of the 1995 Order.

48.I therefore also conclude that there is power under article 98(11)(a) to vary the requirement of a three-man crew in relation to the particular flight in question.

Built-in provisions permitting departure

49.In my view, even Cathay’s own approved scheme has built in provisions to permit departure from the three-man crew requirement.  Section 6 of the approved scheme reads:

“6.1  The Company may apply to the Civil Aviation Department for variations to this Scheme.  Variations may be permanent or temporary in nature and may apply only to certain aircraft fleets, routes, series of flights or a specific flight.

6.2  The Company will consult with crews regarding the implementation of any significant variations prior to requesting permanent incorporation into the Scheme.”

50.It is based on Section 6 in CAD 371:

“6.1  While operators are required to construct their schemes in accordance with the standard provisions, it is recognised that these provisions will not necessarily interact sensibly with every type of operation.  In such circumstances operators may apply to incorporate variations from the standard provisions in their FTL Scheme.  Approval to do so will only be given where an operator can show that, despite the variation, the level of protection against fatigue will, at least, be equivalent to that provided by the standard provision.

6.2  Variations from the standard provisions may be permanent in nature or temporary, and applicable only to a certain aircraft fleet, schedule, route, flight or series of flights.  Any variation of a permanent nature must be incorporated in the approved scheme.  Those of a temporary nature must be brought to the attention of crew members by incorporation in the operations manual, or other suitable operating instructions (e.g. ‘Notices to Crew’).”

51.Since para 6.1 in Cathay’s approved scheme specifically provides for seeking and obtaining the CAD’s approval for variations to the scheme, once an approval is so obtained, Cathay Pacific will not be acting in breach of the scheme when it acts in accordance with the scheme (as varied) in relation to the particular flight in question.  In those circumstances, there would be no question of Cathay’s acting contrary to article 54(1)(d) of the 1995 Order.

52.Mr Scott again argues that neither Section 6 in Cathay’s approved scheme nor Section 6 in CAD 371 permits any variation to the three-man crew requirement in relation to a specific flight.  He refers to the requirement to “incorporate variations” in the approved scheme in paras 6.1 and 6.2 in CAD 371 in support of his argument that what is contemplated is a general variation, not an ad hoc variation in relation to one single flight.

53.I reject the argument.  It is plain from the analysis above that what is more important is the provisions in Cathay Pacific’s approved scheme.  It is with the provisions in that specific approved scheme, rather than the general provisions in CAD 371, that Cathay Pacific has the statutory obligation to ensure compliance under article 54(1)(d).  Para 6.1 of Cathay’s approved scheme specifically says that a variation may be “temporary in nature and may apply only to … a specific flight”.

54.In any event, para 6.2 in CAD 371 also says that variations “may be … temporary, and applicable only to a … flight …”.  Moreover, only a variation of a “permanent nature” must be incorporated in the approved scheme.  Those of a temporary nature must be brought to the attention of crew members by incorporation in the operations manual, “or other suitable operating instruments (eg “Notices to crew”)”.

55.I therefore reject Mr Scott’s argument that only permanent variations are envisaged and such variations must be incorporated into the operations manual.

56.In my view, the relevant provisions permit an one-off variation, and since it is of a temporary nature, it may be brought to the notice of the crew members by suitable means, including, but limited to, a ‘notice to crew’ or a ‘commander’s brief’ (as per Captain Davis’ evidence).  Or, in my view, where appropriate, orally, as in the present case, where both Captain Carr and First Officer Day had been consulted and were, in fact, agreeable to flying the plane by themselves only.

57.I therefore also conclude that there is power under Section 6 of Cathay’s approved scheme (and also under Section 6 of CAD 371) to vary the three-man crew requirement in relation to the flight in question, so as to enable Cathay to fly it without breaching its obligation under article 54(1)(d).

Conclusion on first issue

58.In conclusion, on this first issue, I take the view that the Director-General, through Captain Davis, did have the authority to dispense with or vary the requirement of a three-man crew in the case of Flight CX168 and to permit Cathay Pacific to fly it with only a two-man crew.  The decision made was a lawful one.

Confusing reasons

59.This brings me to a side issue, namely, the clarifications or explanations given by Captain Davis and the Director-General regarding the source of their power to make the above decision.  It cannot be denied that rather confusing answers were given at various times to justify the decision.  This has generated some debate at the hearing regarding whether the Director-General can go back on his reasons for the decision.

60.Interesting though some of the arguments may be, this issue does not affect the present proceedings.  It must be remembered that in the form 86A, what the applicant seeks is a declaration that the decision in question was “unlawful and improper”.  It is the lawfulness of the decision that is in issue.  It is a legal question, admitting of only one answer.  Either the decision was lawful or it was not.  And that depends, in turn, on whether there is any legal power available to the Director-General to make the decision.  It does not turn on what the Director-General subjectively thought was his source of power, or what explanations he gave subsequently regarding his source of power.

61.The subsequent confusion relating to the Director-General’s source of power is, on final analysis, a question about the adequacy or correctness of the reasons given by the Director-General for the decision.  Although it is not suggested that the Director-General has the duty to give reasons, once they are given, they must be proper and adequate.   And once they are given, the question of whether they can be supplemented or changed subsequently by some further or even new reasons would arise.  However, all this is quite academic here because adequacy or correctness of the reasons given by the Director-General is not a subject matter of challenge in the form 86A.  Nor is the question of whether the Director-General should be allowed to supplement or even change his reasons subsequently.

62.In those circumstances, and in view of my primary conclusion on whether the Director-General has the legal power to make the decision in the first place, I do not propose to deal with this question of reasons.  I do not see how it can affect the question of lawfulness of the decision made which is one of the only two issues raised in the form 86A.

Second issue: irrationality

63.The second issue raised in the form 86A is whether the decision was irrational.

64.It is necessary to look at the substantive reasons given by Captain Davis for his decision.  They can be found in paragraph 2(c) of his letter dated 27 May 2008 to the then president of the applicant, Captain Turner:

“…. The authorisation granted by the Flight Operations Inspector was therefore based on the CPA having confirmed the following:

i)  The two pilots were well rested and had been rostered for a number of days off prior to the flight on the 27 February 2008.

ii)  The two pilots were acclimatised.

iii)  The two pilots categorically confirmed that they were totally rested, fatigue was not a factor, and they were prepared to operate the flight, which at the time was indicating a sector time less than 8.30 hours.

iv)  The crew was totally compliant with Article 55(1) of the AN(HK)O.”

65.As to (i), there is no dispute that Captain Carr and First Officer Day had been rested for three days and six days respectively prior to the flight.  It is also true that their “rest” had been disturbed by the telephone conversations they had with Cathay Pacific regarding whether they were prepared to fly the flight without a third pilot.

66.Mr Scott submits, in essence, that this is an irrelevant factor.  The fact that the pilots had been adequately rested would not, by itself, prevent them from experiencing fatigue for having to fly the plane through the Window of Circadian Low.

67.As for (ii), Mr Scott submits that the fact that the two pilots were acclimatised is neither here nor there.  If they had not been acclimatised, the more stringent Table B would have applied.  Acclimatisation itself does not prevent fatigue from being experienced.

68.As for (iii), Mr Scott’s point is that the whole point of having an objective standard set out in the form of Table A (and the notes thereto) is to prevent self assessment by the pilots.  It was simply unrealistic to ask the pilots to assess and forecast their fatigue state for a period that was 11.5 or 12 hours ahead.  Nor was it right for the CAD to rely on the pilots’ own assessment.

69.Furthermore, Mr Scott correctly points out that the scheduled (rostered) sector length for the flight was 9 hours 10 minutes, even though, counsel accepts, when Captain Davis was considering whether to grant the dispensation, the estimated sector length had been revised to under 8 hours 30 minutes.

70.As for (iv), Mr Scott repeats his argument that it is simply irrational and wrong for the CAD to rely on the pilots’ own assessment.  Article 55(1) of the 1995 Order simply requires a crew member not to act as a member of the crew if he knows or suspects that he is suffering from, or having regard to the circumstances of the flight to be taken, is likely to suffer from, such fatigue as may endanger the safety of the aircraft or of its occupants.  It is no guarantee that fatigue will not take place.

71.Mr Scott therefore argues that the margin of safety of Flight CX168 has been compromised.  He specifically adopts what the current chairman of the applicant has said in his affidavit filed in these proceedings on 8 January 2009:

“10.  … It is self evident that the flight arrived without incident.  However, it arrived with a reduced margin of safety.  The objective of CAD 371 and the AFTLS is to provide protection for Flight Crew Members against Fatigue ensuring the alertness and reliability of the crew members which is pertinent to the safety of the flight that they operate.  Safety margins are built into every part of the commercial aviation system.  Engines and airframes are operated well within their design limits.  Similarly, the rules prescribed by AFTLS are not based on the limits of physical endurance of the flight crew but provide a margin to account for many known and unknown factors.  It is known that there is natural variation in human ability to remain alert.  It is unknown what challenges (perhaps emergency procedures) that will face the crew on a particular sector.  By arbitrarily increasing the maximum duty limit this margin was reduced and the safe arrival of the flight was less likely to happen.  If the AFTLS is not adhered to and no equivalent measures are put in place, it is self evident that safety must be compromised in some non-trivial degree.

11.  An essential point is that this flight took place through the flight crew’s Window of Circadian Low (“WOCL”) i.e. the period between 02:00 - 05:59 hours local time.  During the WOCL human performance and alertness is degraded.  This degradation occurs regardless of the amount of preceding rest.  The effects of the WOCL cannot be avoided. The pilot at the controls is at greater risk of making an error if he has been continuously at the controls for 8 hours, through the WOCL, while the 2nd pilot monitoring the operation has a reduced capacity to detect any such errors.  It is for this very reason that the carriage of a third pilot on flights over 8 hours during the crew’s WOCL was introduced into CAD 371 some years ago.

12.  Substantial research has been carried out on the issue of fatigue and the WOCL. …

13.  The third crew member, mandated by CAD 371, is carried to negate the effects of the WOCL on such a long flight.  As well as providing an opportunity for crew rest, the third crew member also acts as a third set of eyes monitoring the performance of the two operating flight crew during the critical approach and landing phase.  Any abnormal or emergency procedures can be shared with the third flight crew member and any decisions subsequently taken are subject to a three way scrutiny.

14.  The insidious and subtle nature of fatigue is such that an individual cannot accurately assess their own fatigue state.  It is not possible for the individual to forecast their fatigue state for a period 8 to 10 hours ahead. The Captain here was asked whether he was willing to undertake the flight 3 hours before the flight was due to take off. Therefore he had to forecast his fatigue state for a period that was 11.5 hours ahead. The First Officer was called at home almost 6 hours (sic) before the flight was due to take off to ascertain whether he was willing to undertake the flight.  He therefore had to forecast his fatigue state for a period that was approximately 13 hours (sic) ahead.”

72.Mr Scott also criticises Captain Davis for making his decision casually and “on the hoof”.  He points out that the decision was made within a very short period of time when Captain Davis was travelling from office to home; it was made without any documents before him; he made no notes of the relevant telephone conversations or the decision made; it was made over the mobile telephone; and it was made without consulting any medical or aviation experts.  Mr Scott also says the decision was made by Captain Davis without investigating or exploring other possible ways to solve the problem, such as contacting other possible third pilots, and it was done when Captain Davis was himself not sure about the source of his authority to grant the dispensation.  Mr Scott also says that on the evidence, it is simply unclear as to whether it was Captain Davis who made the decision granting the variation/dispensation first, or it was Captain Carr who agreed to pilot the aircraft with a single co-pilot first.

73.As regards international practice, Mr Scott points out that apart from Hong Kong, the United States also prohibits a two-man crew from flying longer than 8 hours.  He argues that each transport hub has its own characteristics, transport pattern and geographic considerations.  CAD 371 is written to fit the particular circumstances of Hong Kong (for example, a particularly busy hub with many east/west operations so that our “margin of error/safety” is smaller).  It is therefore unhelpful to draw comparisons with similar requirements in the United Kingdom and in the European Union.

Discussion on the second issue

74.In my view, it must be borne firmly in mind that in the present context, irrationality means irrationality in the Wednesbury sense.  The Court, sitting in its judicial review jurisdiction, performs a supervisory function.  It does not play an appellate role; still less does it substitute its own view on the matter for that of the decision-maker.

75.In order to succeed, the applicant must show that the decision made by Captain Davis to allow Flight CX168 to fly with only two pilots was one which was so unreasonable or irrational that no reasonable civil aviation authority could ever come to it.  That, from the point of view of the applicant, is a high threshold.

76.This is so particularly when the subject matter of the present decision involves issues within the particular expertise of the decision-making authority.  As Fordham, Judicial Review Handbook (5^th ed), para 13.4 points out and the cases referred to under that paragraph and in the following paragraphs illustrate, a classic context warranting judicial restraint is where the issue was within the particular expertise of the public body.  “Here, general restraint is reinforced by the insight that the primary decision-maker is better placed than the Court to evaluate matters falling within his area of expertise”: ibid at para 13.4.

77.In the present case, first, it must be remembered that CAD 371 is itself a document of the CAD.  It is a policy document of the CAD and, as has been pointed out, both in the 1995 Order and in CAD 371 Section 6, powers are reserved to the CAD to exempt or vary the requirements in the policy document.  Further, in Cathay Pacific, Hartmann J has also confirmed that the CAD may, if it so wishes, change the requirements in the CAD 371 even in the absence of consensus amongst those interested in the matter.  On the other hand, I accept that the provisions in CAD 371 have been worked out with meticulous care and should not be lightly overlooked.

78.Secondly, Captain Davis, who was responsible for making the decision under challenge, is no doubt somebody possessing expertise in the matter.  Paragraph 4 of his first affidavit filed on 30 October 2008 sets out his experience:

“I joined the Hong Kong Civil Aviation Department (Flight Standards and Airworthiness Division) in 1995 as a FOI [Flight Operations Inspector].  I served with the Royal Air Force of the United Kingdom (the “RAF”) from 1954 to 1972 flying fighter aircraft, which included a secondment for 3 years to the air force of the United States of America (“USA”) where I was deployed flying long-range aircraft.  In 1972, I retired from the RAF with the rank of Wing Commander and, after three years as a fighter pilot instructor with the Abu Dhabi air force of the United Arab Emirates, I joined Gulf Air in 1975.  I held senior operations and training management positions within Gulf Air, involving aircraft manufactured by Airbus and The Boeing Company.  With the introduction of the Airbus A340 aircraft into Gulf Air, I was responsible for planning and training the crews for the Airbus A340 Ultra Long Range (“ULR”) aircraft on return flights from Bahrain and other Gulf cities to New York.  I joined the CAD in 1995 and was responsible for the safety regulations of the fleet of Airbus aircraft operated by the Interested Party, Cathay Pacific Airways (“CPA”).  My duties included flying as one of the operating pilots on ULR return flights from Hong Kong and Europe and from Hong Kong and the USA.  I currently hold valid Hong Kong, United Kingdom and Australian Airline Transport Pilot’s Licences, and I am currently rated to fly the Airbus A330, the Airbus A340-300 and the Airbus A340-600 on training flights.”

79.Indeed, on the very day the decision was made, Captain Davis had just finished a meeting of the CAD flight time limitations working group, which he chaired.

80.Thirdly, while it is true that under CAD 371 and, so the Court has been told, under relevant US regulations as well, the flight was and would have been required to be flown with a three-man crew, it is equally true that under UK and EU regulations, the flight could have been flown with a two-man crew.  More specifically, the United Kingdom Civil Aviation Authority in their CAP 371 dated January 2004 authorises a single sector operation with two flight crew members of up to 9 hours during the hours of 2200-0559.  The Council of the European Union authorises all European airlines a single sector operation with two flight crew members in the order of 10 hours for flight traversing the time band of 0200-0559.  As Mr Ismail points out, there has never been a worldwide ban on two pilots operating flights of up to 9 or even 10 hours, within 0200-0559.

81.It is true, as Mr Scott has submitted, that every transport hub has its own characteristics, transport pattern and geographic considerations, and one simply cannot copy blindly the requirements in other parts of the world.  However, so far as circumstances in Hong Kong are concerned, the CAD and Captain Davis should be taken to have sufficient knowledge of what those circumstances dictate generally and in any particular case in terms of flying requirements.

82.The actual sector length as flown was 8 hours 38 minutes.  However, as described, the pre-flight estimate was less than 8 hours 30 minutes.  Indeed amongst other things, Captain Carr took into account that the predicted weather conditions to Hong Kong were good, and a high speed computer flight plan was to be used so that the flight was estimated to last within 8 hours 30 minutes, before agreeing to fly the aircraft without a third pilot.  It was based on that latest estimate also that Captain Davis made his decision.  Mr Scott argues that according to CAD 371, it was the rostered sector length which should have been used when applying note 1 to Table A.  That is correct – under paragraph 7.29 of Cathay’s approved scheme, the term “scheduled” is to be taken to include other equivalent commonly used terms such as “planned” or “rostered”.  However, it only means that a variation or dispensation is required from the CAD, which is a separate and different question.

83.And in considering whether such a variation or dispensation should be granted, in my view, it is perfectly right for Captain Davis to consider, not the rostered sector time, but the latest estimated sector time.  After all, one is concerned with whether in fact, safety of the flight would be compromised by granting a dispensation or variation in the light of the latest estimate of sector length.  Indeed, it would have been irresponsible on his part if Captain Davis were to stick to the rostered sector length if (hypothetically) at the time of decision-making he had been made aware of a longer estimated sector length.

84.The latest estimated sector length, ie under 8 hours 30 minutes, exceeded the requirements set out in CAD 371 by less than half an hour.  It was well within the maximum times allowed under the respective UK and EU standards.

85.Captain Davis cannot be criticised for bearing that in mind.

86.As regards the pilots’ self assessment and the fact that they had been fully rested, whilst they cannot be conclusive factors in favour of granting a dispensation, they must be, in my view, relevant factors for Captain Davis to take into account.  

87.I accept that fatigue cannot be totally eliminated by sufficient prior rest.  But what I do not accept is Mr Scott’s argument that sufficient prior rest is therefore irrelevant.  In fact, as Mr Ismail has pointed out, having sufficient prior rest has everything to do with preventing or minimising fatigue.  In one definition of “rest period”, it is said that the term “implies an absence of duty and is intended to be for the purpose of recovering from fatigue”: ICAO Flight Time and Flight Duty Limitations, Attachment A, para 2.3.  In para 2.1 of Cathay’s approved scheme, it is stated that the objects of the scheme are to ensure that “crew members are adequately rested at the beginning of each flight duty period and that the duration and timing of individual duty periods will enable them to operate to a satisfactory level of efficiency and safety in all normal and abnormal situations”.  Similar wording is found in paragraph 2.1 of CAD 371, which goes on to say “the standard provisions set out in this document are therefore concerned solely with the prevention of fatigue and the maintenance of vigilance in flight”.

88.Likewise, in my view, a pilot’s own assessment is important, although by no means conclusive.  Otherwise, the requirement in article 55(1) of the 1995 Order would not make much sense.  That article requires a person not to act as a member of the crew of an aircraft if he knows or suspects that he is suffering from, or, having regard to the circumstances of the flight to be undertaken, he is likely to suffer from, such fatigue as may endanger the safety of the aircraft or of its occupants.  Captain Carr’s and First Officer Day’s own assessments that they totally complied with article 55(1) of the 1995 Order were therefore matters that Captain Davis rightly took into account.  Nothing in the documents suggests that he viewed their own assessments as conclusive in his decision-making process.

89.It is true that both Captain Carr and First Officer Day had their rests disturbed technically, several hours before they were due to report for the flight.  But that must be viewed in the context of their relatively lengthy rest periods beforehand, ie three days and six days respectively.

90.In theory at least, it must be right to say that the margin of safety has been reduced by having one less pair of eyes on board the aircraft.  However, one is not talking about a theoretical risk here; one is concerned with whether no civil aviation authority acting reasonably could have decided to allow Flight CX168 to be flown by two pilots only.

91.It is also true that para 6.1 of CAD 371 speaks of permitting a variation only if the level of protection against fatigue will at least be “equivalent” to that provided by the standard provision.  But it must be remembered that CAD 371 is not legislation.  It is only a policy document.  Its must be read with common sense.  One is not talking about a theoretical equivalent level of protection.  One is more concerned with whether in reality, the level of protection will be practically equivalent.  Moreover, the requirement only appears in CAD 371.  It does not feature in the approved scheme of Cathay Pacific which is, in my view, the primary document to look at, in terms of article 54(1)(d) which requires Cathay to comply with the provisions in its approved scheme.  Moreover, neither article 95 nor article 98(11) discussed above refers specifically to this requirement.  In my view, everything boils down to whether Captain Davis’ decision could be challenged as Wednesbury irrational or unreasonable.

92.I do not accept that Captain Davis made his decision in haste.  The fact that he made his decision over the mobile telephone and while on his way home is neither here nor there. That he was in the position to make a quick decision simply reflects his experience and expertise in the subject matter.

93.The fact that it is not absolutely clear who decided what first according to the available records only means that the documentation kept by the CAD and Cathay Pacific relating to the decision-making process is not perfect.  As a matter of common sense, it is unthinkable that Captain Davis would have been agreeable to grant the variation or dispensation without first having ascertained the agreement of Captain Carr and First Officer Day to fly the flight with only two crew members.  Put another way, it is unthinkable that Captain Davis would have granted a dispensation or variation without making it conditional upon Captain Carr’s and First Officer Day’s agreement to fly the flight without a third pilot.  On the other hand, it is equally unthinkable that Captain Carr would have been agreeable to fly the plane without a third pilot, even with a CAD dispensation, if he had not been fully satisfied that he was able to do so without the additional pilot, given his own obligation under article 55(1) of the 1995 Order.  In short, I do not think the incomplete record of the sequence of events affects the question of irrationality.

94.The fact that Captain Davis had no documents before him and he made no notes of his decision-making process cannot by itself render the decision made irrational.  It is true that Captain Davis did not require Cathay Pacific to contact more possible replacement pilots before making his decision.  But that is not the issue before the Court.  The true issue is whether the decision actually made was so perverse, or irrational that no reasonable civil aviation authority in the position of Captain Davis could have come to it.  Likewise for the criticism that Captain Davis did not consult others before making the decision.

95.Having considered the matter carefully, I have come to the firm conclusion that the decision made by Captain Davis was not one that no civil aviation authority could reasonably have come to it.  I do not accept that he has taken into account irrelevant considerations.

96.I reject the challenge based on irrationality.

Academic challenge?

97.During the hearing, some time has been spent on whether the Court should entertain the present challenge at all, as it relates to a one-off incident that occurred in 2008.  But I hope it is plain from the above discussion that this challenge raises very general questions about the authority of the CAD to grant variation/exemption/dispensation.  It also provides an opportunity to illustrate how the court will supervise the exercise of discretion by the CAD in similar incidents in future, no matter how rare they may be.

Delay

98.A question of delay has been raised by the CAD.  In view of the conclusion that I have reached, I do not think it is a relevant issue anymore.

Outcome

99.In conclusion, the application for judicial review is dismissed.

100.Although there were some changes in the source or sources of authority relied on by the Director-General to explain the making of the decision, by mid August 2008, the Director-General had referred the applicant to both articles 95 and 98 of the 1995 Order.  In those circumstances, the applicant cannot say that it was not aware of the sources of authority to make the decision under challenge before they commenced the present proceedings on 26 August last year.  Furthermore, the applicant has also failed on the second ground of challenge (irrationality). 

101.I would therefore make an order nisi that the applicant pay to the respondent and the interested party their respective costs of these proceedings (including any costs previously reserved), to be taxed if not agreed. 

102.Lastly, I thank counsel for their assistance.

Mr John Scott SC and Mr John Hui, instructed by Robertsons, for the applicant

Mr Anthony Ismail, instructed by the Department of Justice, for the respondent

Mr Alexander Stock, instructed by JSM, for the interested party

[1]  FDP starts when the crew member is required by an aircraft operator to report for a flight and is, in the case of Cathay Pacific, one hour before the scheduled departure time.  In the present case, the FDP therefore commenced at 0020 Melbourne time.

[2]  FDP finishes at on-chocks or engines off, or rotors stopped, on the final sector, or when the crew member last vacates a control seat and is free of all duty for the remainder of the flight, whichever is the earlier: para 7.9 of CAD 371.

[3]  The term includes, for the purposes of the 1995 Order, the Director-General and Captain Davis, his alter ego (see Carltona Ltd v Commissioner of Works [1943] 2 All ER 560, 563A-C/D): article 98(1), definition of “Chief Executive”.