EXERCISING A PUBLIC AIR TRANSPORT ACTIVITY WITHOUT AUTHORIZATION
DISMISSAL and AMNESTY of the appeals brought by: 1 ° Lévy Bernard, accused, 2 ° Charpentier Vincent, Houtteman Martine, widow Charpentier, acting both in his personal name and in his capacity as legal administrator of his minor son Cédric Charpentier, Fleuriel Martine , widow Depince, Depince Valérie, Depince Cédric, civil parties, against the judgment of the Paris Court of Appeal, 20th chamber, dated February 15, 1995, which, in the proceedings brought, on the one hand, against Bernard Lévy, Pierre Bos and Alain Bouvier for manslaughter, and, on the other hand, against the first 2 defendants for contravention of illegal exercise of the activity of air carrier, sentenced Bernard Lévy to 18 months imprisonment including 14 months suspended sentence, for the offense, and a fine of 800 francs for the contravention, released the 2 other defendants, and pronounced on civil interests.
THE COURTYARD,
Joining the appeals because of the relatedness;
Whereas it results from the judgment under appeal that the company Garage du Bac organized a demonstration intended to present, on circuit, the last model of a German mark of automobile of which it is dealer; that in order to ensure the transport of the journalists and photographers invited to cover the advertising operation, it chartered, through the company “Dynn ‘Air International”, a tourist plane from the company “JC Air” , led by Bernard Lévy; that the aircraft, piloted by Daniel Touzard, crashed shortly after takeoff, all occupants being killed in the accident;
That at the end of an information, closed by a settlement order of March 23, 1993, Bernard Lévy as well as Pierre Bos, manager of the company “Dynn Air International” and Alain Bouvier, agent of this company, were dismissed before the criminal court under the prevention of manslaughter; that the first 2 have, moreover, been prosecuted for exercise without authorization of an activity of public air transport, contravention envisaged and repressed by articles R. 330-1 and R. 330-15 of the Code of civil aviation;
Whereas the court declared Bernard Lévy guilty of these offenses, condemning him to various penalties as well as to compensation on the basis of article 475-1 of the Code of Criminal Procedure, and released the 2 other defendants;
That this decision was appealed by the convicted defendant, the civil parties and the public prosecutor;
In this state:
- On the appeal brought by Bernard Lévy;
Considering the briefs produced in demand and in defense;
On the first ground of appeal: (without interest);
On the second ground of appeal, taken from the violation of articles L. 323-1, L. 232-2 and L. 422-1 of the Civil Aviation Code, 319 of the Code of Criminal Procedure, 132-19 of the new Penal Code and 593 of the Code of Criminal Procedure:
“in that the judgment under appeal declared Bernard Lévy guilty of the contravention of the illegal exercise of the activity of public transport and of the offense of manslaughter and condemned him to 800 francs fine and 18 months of imprisonment including 14 months suspended;
plane as well as to carry out additional refueling of this one and finally to deposit himself at the control tower of the aerodrome of Toussus-le-Noble the flight report; that it can thus be deduced from all of these elements that the SARL “JC Air”, acting and represented by Bernard Lévy, and which has made available to the Garage du Bac and its sponsor, the company Castrol, in return for remuneration, an aircraft with crew for a round trip flight with passengers from the aerodrome of Toussus-le-Noble to that of Montluçon on November 17, 1988 has, in doing so, assumed on the one hand and on a contractual level the quality of charterer at the meaning of Article L. 323-1 of the Civil Aviation Code; that it is on the other hand common ground that the limited liability company “JC Air”, although being, in return for remuneration, delivered in this way and repeatedly, as is also apparent from the file and the discussions, to a public air transport activity, did not have the required administrative approval; that it is, therefore, established that Bernard Lévy has, in this case, and notwithstanding his denials, contravened the provisions of Articles L. 330 and R. 330 of the same Code;
flight hours on behalf of “JC Air”; Bernard Lévy contests the existence of this agreement by arguing of the payment of a first invoice, presented and honored, and especially of the too long duration of such a contract taking into account the tariffs practiced; 5,000 francs per hour of aircraft rental against 500 francs per hour for the pilot; Bernard Lévy therefore presents himself as the only link between the initiative of Mr. Petit, formulated by MM. Bos et Bouvier and the designation of Daniel Touzard as pilot of the aircraft that he made available to the applicants in the name of “JC Air” for remuneration; and especially the too long duration of such a contract given the rates charged; 5,000 francs per hour of aircraft rental against 500 francs per hour for the pilot; Bernard Lévy therefore presents himself as the only link between the initiative of Mr. Petit, formulated by MM. Bos et Bouvier and the designation of Daniel Touzard as pilot of the aircraft that he made available to the applicants in the name of “JC Air” for remuneration; and especially the too long duration of such a contract given the rates charged; 5,000 francs per hour of aircraft rental against 500 francs per hour for the pilot; Bernard Lévy therefore presents himself as the only link between the initiative of Mr. Petit, formulated by MM. Bos et Bouvier and the designation of Daniel Touzard as pilot of the aircraft that he made available to the applicants in the name of “JC Air” for remuneration;
“whereas the owner of an aircraft who leases it to a user can only be regarded as exercising an air carrier activity if he has the quality of principal of the pilot made available to the lessee; only by deducting the financial year by Bernard Lévy of such an activity of the only circumstance that this one had appointed Daniel Touzard as pilot of the plane which he hired and of the declaration, unverified, of the concubine of the pilot according to which Daniel Touzard worked hours flight on behalf of Bernard Lévy in return for hours of training on said plane, without otherwise characterizing the existence of a link of preposition, the Court of Appeal violated the texts referred to by means “;
On the third ground of appeal, taken from the violation of articles L. 323-1, L. 232-2 and L. 422-1 of the Civil Aviation Code, 319 of the Code of Criminal Procedure, 132-19 of the new Penal Code and 593 of the Code of Criminal Procedure:
“in that the judgment under appeal declared Bernard Lévy guilty of the contravention of the illegal exercise of the activity of public transport and of the offense of manslaughter and condemned him to 800 francs fine and 18 months of imprisonment including 14 months suspended;
indirectly, upon the occurrence of the air accident in question; that it thus appears that the sudden crash on the ground of the Conquest II plane, shortly after its takeoff, could not have had for direct and immediate cause than a lack of control of the unfortunate pilot whose all the information gathered is agree that, faced with the circumstances and, moreover, with difficult meteorological conditions requiring an instrument take-off (IFR), he had little experience in operating this type of aircraft; appears first of all and as having to be held at the expense of Bernard Lévy the fault committed by him personally on the very morning of November 17, 1988 and which consisted, while he was also present on the scene and that he had previously been aware of the bad weather conditions which he himself had inquired about as a professional operator at the aerodrome office, as he agreed during his hearing on 3 July 1989, not to not have, in this case, and as it was necessary for him, to postpone, even temporarily, and as he had the power over his attendant, the departure of the aircraft in the absence of presence at aboard a co-pilot whose assistance was imperatively required by virtue of the safety standards in force when, as in the circumstance, the horizontal visibility was reduced to 200 meters; that more and always in connection with the accident, and while it is common ground that Daniel Touzard did not appreciate the centering of the aircraft in its rear part, it is clear that Bernard Lévy, for his part, and by not complying with the regulations in force, deprived the pilot of the possibility of consulting the operating manual before take-off. whose presence on board was compulsory for any public air transport operation and which contained more detailed explanations as to the centering standards than those given more briefly in the maintenance book which the said pilot had at his disposal; that the consultation by the latter of such a document would have been likely to strengthen his vigilance on the rules to be respected in terms of centering, even if this, and as the accused admits in his written submissions, by the need to the pilot and before any flight to sign it; and by therefore not complying with the regulations in force, deprived the pilot of the possibility of consulting, before take-off, the operations manual, the presence of which on board was compulsory for any public air transport operation and which contained centering standards more detailed explanations than those given more briefly in the maintenance booklet available to said pilot; that the consultation by the latter of such a document would have been likely to strengthen his vigilance on the rules to be respected in terms of centering, if it was not, and as the accused admits in his written submissions, by the need to the pilot and before any flight to sign it; and by therefore not submitting to the regulations in force, deprived the pilot of the possibility of consulting, before take-off, the operations manual, the presence of which on board was compulsory for any public air transport operation and which contained centering standards more detailed explanations than those given more briefly in the maintenance booklet available to said pilot; that the consultation by the latter of such a document would have been likely to strengthen his vigilance on the rules to be respected in terms of centering, if it was not, and as the accused admits in his written submissions, by the need to the pilot and before any flight to sign it; operation whose presence on board was compulsory for any public air transport operation and which contained more detailed explanations as to the centering standards than those given more briefly in the maintenance book which the said pilot had at his disposal; that the consultation by the latter of such a document would have been likely to strengthen his vigilance on the rules to be respected in terms of centering, even if this, and as the accused admits in his written submissions, by the need to the pilot and before any flight to sign it; operation whose presence on board was compulsory for any public air transport operation and which contained more detailed explanations as to the centering standards than those given more briefly in the maintenance booklet available to said pilot; that the consultation by the latter of such a document would have been likely to strengthen his vigilance on the rules to be respected in terms of centering, if it was not, and as the accused admits in his written submissions, by the need to the pilot and before any flight to sign it;
that thus, and by ignoring this regulatory requirement and which was imposed on him since it concerns a public air transport, Bernard Lévy did not put Daniel Touzard in a position to prevent the imperfection of centering which This is and which, as the experts have noted, contributed to making it even more difficult to drive the airplane due to the resulting lack of longitudinal stability; that in any event, it was up to Bernard Lévy, as manager of the company “JC Air”, owner-operator of the Conquest II aircraft, to ensure that this aircraft was in good repair before being made available. and walking, it is with good reason that the fault which consisted in not having before the flight of November 17, 1988 had the so-called 50-hour revision carried out on October 28, 1988, to repair the right-hand torque meter of the engine whose intermittent low-speed operation had been reported to it by the previous ones. pilots of said aircraft; that the persistence of this defect, which in fact resulted, and as the aeronautical experts point out, a slight asymmetry in the application of the powers supplied by the aircraft’s engines on take-off, must be regarded as having also contributed the loss of control of the aircraft by the pilot; that thus, and ultimately, the various faults as noted above by the Court against Bernard Lévy, and which therefore all contributed to the loss of control of the
“while, if the causal link between the faults alleged against the accused and the accident may be indirect, it must nevertheless be certain; that thus, in the present case, where the exact cause of the accident, at the origin of the lack of pilot control retained by the Court, remained unknown, the latter by holding Bernard Lévy responsible for not having delayed the departure due to insufficient visibility, for not having put the operating manual at the disposal of the pilot and not to have made repair the couple meter straight, without finding that these alleged deficiencies had been able in a certain way to contribute to the accident, violated the texts referred to by means “;
On the fourth ground of appeal, taken from the violation of articles L. 323-1, L. 232-2 and L. 422-1 of the Civil Aviation Code, 319 of the Code of Criminal Procedure, 132-19 of the new Penal Code and 593 of the Code of Criminal Procedure:
“in that the judgment under appeal declared Bernard Lévy guilty of the contravention of the illegal exercise of the activity of public transport and of the offense of manslaughter and condemned him to 800 francs fine and 18 months of imprisonment including 14 months suspended;
maintenance of the aircraft, also contributed to this air disaster and are consequently in a cause and effect relationship with the said accident; that it appears first of all and as having to be held at the expense of Bernard Lévy the fault committed by him personally on the very morning of November 17, 1988 and which consisted, while he was also present on the scene and that he had previously been aware of the bad weather conditions which he himself had inquired about as a professional operator at the aerodrome office, as he agreed during his hearing on 3 July 1989, not to be not have, in this case, and as it was necessary for him, to postpone, even temporarily, and as he had the power over his attendant, the departure of the aircraft in the absence of the presence on board of a co-pilot whose assistance was imperatively required under the safety standards in force when, as in the circumstances, the horizontal visibility was reduced to 200 meters; that moreover and always in connection with the accident, and while it is common ground that Daniel Touzard did not appreciate the centering of the aircraft in its rear part, it is clear that Bernard Lévy, for his part, and by therefore not submitting to the regulations in force, deprived the pilot of the possibility of consulting, before take-off, the operations manual, the presence of which on board was compulsory for any public air transport operation and which contained in terms of standards centering more detailed explanations than those given more briefly in the interview available to said pilot; that the consultation by the latter of such a document would have been likely to strengthen his vigilance on the rules to be respected in terms of centering, even if this, and as the accused admits in his written submissions, by the need to the pilot and before any flight to sign it; that thus, and by ignoring this regulatory requirement and which was imposed on him since it concerns a public air transport, Bernard Lévy did not put Daniel Touzard in a position to prevent the imperfection of centering which This is and which, as the experts have noted, contributed to making it even more difficult to drive the airplane due to the resulting lack of longitudinal stability; that the consultation by the latter of such a document would have been likely to strengthen his vigilance on the rules to be respected in terms of centering, even if this, and as the accused admits in his written submissions, by the need to the pilot and before any flight to sign it; that thus, and by ignoring this regulatory requirement and which was imposed on him since it concerns a public air transport, Bernard Lévy did not put Daniel Touzard in a position to prevent the imperfection of centering which This is and which, as the experts have noted, contributed to making it even more difficult to drive the airplane due to the resulting lack of longitudinal stability; that the consultation by the latter of such a document would have been likely to strengthen his vigilance on the rules to be respected in terms of centering, even if this, and as the accused admits in his written submissions, by the need to the pilot and before any flight to sign it; that thus, and by ignoring this regulatory requirement and which was imposed on him since it concerns a public air transport, Bernard Lévy did not put Daniel Touzard in a position to prevent the imperfection of centering which This is and which, as the experts have noted, contributed to making it even more difficult to drive the airplane due to the resulting lack of longitudinal stability; would it not be, and as the accused admits in his writings, by the need for the pilot and before any flight to sign it; that thus, and by ignoring this regulatory requirement and which was imposed on him since it concerns a public air transport, Bernard Lévy did not put Daniel Touzard in a position to prevent the imperfection of centering which This is and which, as the experts have noted, contributed to making it even more difficult to drive the airplane due to the resulting lack of longitudinal stability; would it not be, and as the accused admits in his writings, by the need for the pilot and before any flight to sign it; that thus, and by ignoring this regulatory requirement and which was imposed on him since it concerns a public air transport, Bernard Lévy did not put Daniel Touzard in a position to prevent the imperfection of centering which This is and which, as the experts have noted, contributed to making it even more difficult to drive the airplane due to the resulting lack of longitudinal stability;
that in any event, it was up to Bernard Lévy, as manager of the company “JC Air”, owner-operator of the Conquest II aircraft, to ensure that this aircraft was in good repair before being made available. and running, it is right that the fault was noted against him which consisted in not having before the flight of November 17, 1988 proceeded, in particular on the occasion of the so-called 50-hour revision that took place on October 28, 1988, to the repair of the right torque meter of the engine whose intermittent operation at low speed had been reported to it by the previous pilots of the said aircraft; that the persistence of this defect, which has in fact led, and as aeronautical experts point out, to a slight asymmetry in the application of the powers supplied by the aircraft’s engines on take-off, must be regarded as having also contributed to the loss of control of the aircraft by the pilot; that thus, and ultimately, the various faults as noted above by the Court against Bernard Lévy, and which therefore all contributed to the loss of control of the aircraft by Daniel Touzard due to the additional tasks which they entailed for him, are in fact in relation of cause and effect with the accident by ground crash of the said aircraft which occurred on November 17, 1988;
“while, on the one hand, by affirming on the one hand that it no longer had to question the causal role of various breaches alleged against the defendants, and affecting either the organization itself or the security conditions of the flight undertaken, either under the operating or maintenance conditions of the aircraft and by retaining the responsibility of Bernard Lévy for not having delayed the departure due to insufficient visibility, for not having updated the pilot’s disposal a user manual and finally not having had the right torque meter repaired, that is to say shortcomings affecting flight safety and the operating and maintenance conditions of the aircraft. apparatus, the Court of Appeal tainted its judgment with a contradiction of reasons;
“while, on the other hand, it follows from Article L. 422-1 of the Civil Aviation Code that it is up to the captain alone to determine the distribution of the load on board the aircraft and to postpone the departure for safety reasons; that thus by attributing to Bernard Lévy, owner of the aircraft who had entrusted it to pilot Daniel Touzard, the take-off despite insufficient visibility and poor centering of the aircraft , the court of appeal violated the texts referred to by means “;
The means being united;
Whereas, in order to find Bernard Lévy guilty of unlawful exercise of a public air transport activity, the Court of Appeal noted that the latter had, under the guise of a “bareboat” aircraft rental, supplied to the Garage du Bac company an aircraft, for which he defined the flight plan and appointed the pilot; that it adds that it chartered this aircraft, for remuneration, to ensure the transport of passengers from one aerodrome to another, thus carrying out a public air transport operation without having the required administrative approval, which it did in the usual way;
That the judges retain, to characterize the offense of manslaughter, that by thus contravening the prescriptions of Article L. 323-2 of the Civil Aviation Code, Bernard Lévy, who not only avoided the approval procedure and in particular controls relating to the operating conditions of aircraft and the training of crews, but also to the regulatory requirements governing air transport safety, placed the pilot, moreover inexperienced, in a position to commit serious faults which, together with difficult climatic conditions and poor engine tuning, caused him to lose control of his aircraft during take-off;
That in the state of these reasons, from which it follows that the failures attributable to the accused, of which it characterizes the activity of air transport, contributed to the realization of the accident by creating the conditions which made it possible, the Court of Appeal justified its decision without incurring any of the alleged grievances;
That the means can therefore only be discarded;
On the fifth plea of cassation: (without interest);
- On the appeal brought by the Depince consorts:
Whereas no means are produced in support of this appeal;
III. On the appeal brought by the Charpentier consorts;
Having regard to the briefs produced in demand and in defense:
On the sole means of cassation: (without interest);
And considering that the stop is regular in the form;
DISMISSES the appeals;
And, having regard to article 1 of the law of August 3, 1995 on amnesty:
NOTES that the violation of article R. 330-15 of the Civil Aviation Code is automatically amnestied.
