MICMAEL L. DWORKIN #64047 , -^^Vi^^^i'te^IIO^" 

MICHAEL L. DWORKIN and ASSOCIATES; V^if^*.!:;!}!!^']});^,^ 

465 California Street. Suite 210 '""'^ '••'"fih.AiiUiu; 

San Francisco, Calilbrnia 94104 >- , ;i,n-. 

Telephone: (415) 421-02500 ^if^ J-;. ,: 3 P f: uq 

Facsimile: (415)421-2560 

Email: law@aviale\.com 

Attorney for MARTINAIRE AVIATION. LLC 

JAN t 8 20B 

HEARING DOCKET 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

MARTINAIRE AVIATION. LLC 

FAA Case No . 201 l-GL-70-0205 

Docket No. 

MARTINAIRE AVIATION, LLC'S 

ANSWER TO COMPLAINT ^ 

5 \^ 

cS> 

O' 

Judge: Unassigned 

Martinaire Aviation, LLC ("MARTINAIRE"), by and through its undersigned counsel 

hereby files its Answer to Complaint, pursuant to Rule 209 of the Rules of Practice, (14 CFR § 

13.213), and states as follows: 

I. 

MARTINAIRE admits that it was advised through a Notice of Proposed Civil Pcnalt)'. 

issued on July 1, 2011. that the FAA proposed to assess a civil penalty in the amount of $90,000 
and that through a Final Notice of Proposed Civil Penalty, issued on December 19, 2011, that the 

FAA proposed to assess a civil penally in the amount of $35,000. and that MARTINAIRE 

submitted a written request for a hearing on December 22. 2011. Except as expressly admitted 

above, MAR'flNAIRE denies each and every, all and singular, allegations contained therein, and 

each and every pari thereof, both generally and specifically, conjunctively and disjunctively. 

11. 

Answering Paragraph I, MARTINAIRE admits that a one-gallon container of "Purple 

Power Industrial Strength Cleaner/Degreaser" (hereinafter '"Purple Power'') was carried on board 

one of its aircraft on or about May 11. 2011. Except as expressly admitted above, 

MARTINAIRE denies each and every, all and singular, allegations contained therein, and each 

and every' pan thereof both generally and specifically, conjunctively and disjunctively. 

Answering Paragraph 2, MARTINAIRE admits that the above-described Purple Power was 

carried in aircraft N9505B from Cadillac, MI (CAD) to Ludington. MI (LDM) and then to 

Capital City Airport in Lansing, MI (LAN), where an FAA Special Agent discovered it. Except 

as expressly admitted above, MARTINAIRE denies each and every, all and singular, allegations 

contained therein, and each and every part thereof, both generally and specifically, conjunctively 

and disjunctively. 

Answering the first two lines of Paragraph 3. MARTINAIRE lacks information or belief 

sufficient to answer the allegations contained in Paragraph 3 of the Complaint and based thereon, 

denies each and cver>', all and singular, allegations contained therein, and each and ever>' part 

FAA Case No. 2011-GL-70-U205 

MARTINArRE AVIATION, LLC'S ANSWER TO COMPLAINT 
thereof, both generally and specifically, conjunctively and disjunctively. Answering the third 

line of Paragraph 3, MARTINAIRE denies each and ever>', all and singular, allegations 

contained therein, and each and ever\' part thereof, both generally and specifically, conjunctively 

and disjunctively and specifically avers that it had fully met its employee hazardous material 

training requirements. 

Answering Paragraph 4, MARTINAIRE admits that Purple Power is classified as a 

hazardous material under Section 172.101 of the Hazardous Materials Regulations (hereinafter 

"HMR"). Except as expressly admitted above, MARTINAIRE denies each and every, all and 

singular, allegations contained therein, and each and every part thereof, both generally and 

specifically, conjunctively and disjunctively. 

Answering Paragraph 5, MARTINAIRE admits that the Purple Power was not declared as 

containing hazardous materials. Except as expressly admitted above, MARTINAIRE denies 

each and every, all and singular, allegations contained therein, and each and every part thereof, 

both generally and specifically, conjunctively and disjunctively. 

Answering Paragraph 6, MARTINAIRE admits that the shipment was not labeled 

'•CARGO AIRCRAFT ONLY." Except as expressly admitted above, MARTINAIRE denies 

each and every, all and singular, allegations contained therein, and each and every part thereof, 

both generally and specifically, conjunctively and disjunctively and affirmatively avers that the 

subject aircraft was a cargo aircraft. 

Answering Paragraph 7, MARTFNAIRE admits that the Purple Power was not 

accompanied by a Shipper's Declaration of Dangerous Goods. Except as expressly admitted 

FAA Case No. 201 l-GL-70-0205 

MARTINAIRE AVIATION, LLC'S ANSWER TO COMPLAINT 
above, MARTINAIRE denies each and every, all and singular, allegations contained therein, and 

each and every part thereof, both generally and specifically, conjunctively and disjunctively. 

Answering Paragraph 8, MARTINAIRE admits that the Purple Power was not 

accompanied by shipping papers containing the proper shipping name, hazard class, appropriate 

prefix, volume and/or weight or basic description. Except as expressly admitted above, 

MARTINAIRE denies each and every, all and singular, allegations contained therein, and each 

and ever\' part thereof, both generally and specifically, conjunctively and disjunctively. 

An.swering Paragraph 9, MARTINAIRE denies each and ever>', all and singular, 

allegations contained therein, and each and ever>' part thereof, both generally and specifically, 

conjunctively and disjunctively. 

Answering Paragraph 10, MARTINAIRE denies each and ever>', all and singular, 

allegations contained therein, and each and every part thereof, both generally and specifically, 

conjunctively and disjunctively. 

Answering Paragraph 11, MARTINAIRE denies each and every, all and singular, 

allegations contained therein, and each and every part thereof, both generally and specifically, 

conjunctively and disjunctively. 

Answering Paragraph 12, MARTINAIRE denies each and every, all and singular, 

allegations contained therein, and each and ever>' part thereof, both generally and specifically, 

conjunctively and disjunctively. 

FAA Case No. 2011-C L-70-0205 

MARTINAIRE AVIATION, LLC'S ANSWER TO COMPLAINT 
III. 

Answering Section III, paragraphs 1 (a) - (i), MARTINAIRE denies each and every, all 

and singular, allegations contained therein, and each and every part thereof, both generally and 

specifically, conjunctively and disjunctively, and specifically denies that it violated the cited 

sections of Title 49, Code of Federal Regulations and further denies that it violated any other 

governmental law, rule, regulation or order. 

IV. 

Answering Section IV, paragraph 1. Respondent avers that 49 U.S.C. Section 5123 speaks 

for itself 

Answering Section IV, paragraph 2, MARTINAIRE denies each and every, all and 

singular, allegations contained therein, and each and every part thereof both generally and 

specifically, conjunctively and disjunctively, and specifically denies that a civil penalty in any 

amount is appropriate under the facts and circumstances of this case. 

AFFIRMATIVE DEFENSES 

FIRST AFFIRMATIVE DEFENSE 

As and for a separate and distinct defense, MARTINAIRE alleges: 

I. 

The sanction sought by Complainant is unwarranted by the facts, safety in commerce and the 

public interest and is not only excessive, but, far exceeds policy, precedent and Complainant's 

own Sanction Guidance Table. Further, the sanction is compounded, in violation of the 

FAA Case No. 201 l-GL-70-0205 

MARTINAIRE AVIATION, LLC'S ANSWER TO COMPLAINT 
Complainant's own Sanction Guidance Table. 

SECOND AFFIRMATIVE DEFENSE 

As and for a separate distinct defense, MARTINAIRE alleges: 

I. 

The Complainant's case, is unwarranted and without basis or jurisdiction in law or fact. 

THIRD AFFIRMATIVE DEFENSE 

As and for a separate distinct defense, MARTINAIRE alleges: 

I. 

Any and all alleged violations are the result ofhuman error on the part of 

MARTINAlRE's pilot whose actions were in violation of MARTINAIRE's own policies and 

procedures and contrar>' to the specific training given to the pilot by MARTINAIRE, and without 

MARTINAlRE's knowledge or consent and are in no way indicative of MARTlNAIRE's 

regulatory compliance disposition. 

The pilot involved was adequately trained and qualified and has since received additional 

training. 

FOURTH AFFIRMATIVE DEFENSE 

As and for a separate distinct defense, MARTINAIRE alleges: 

I. 

MARTINAIRE has proactively mitigated any and all damage such that this action is 

unwarranted by policy or the need for safety. Specifically, MARTINAIRE has: 

FAA Case No. 2011 -G L-70-0205 

MARTINAIRE AVIATION, LLC'S ANSWER TO COMPLAINT 
i. Counseled the pilot involved in incident alleged in the Complaint; 

ii. Counseled all fiight department personnel regarding in the interests of preventing 

recurrence of such incidents; 

iii. Provided its personnel with additional Hazardous Materials training so as to prevent 

recurrent of such incidents, including: 

a. Hazardous Material Recognition; and 

b. Acceptance and Transport of Dangerous Goods. 

iv. Updated and revised its Hazardous Materials Training Program to specifically address 

said problems and ensure future compliance. 

FIFTH AFFIRMATIVE DEFENSE 

As and for a separate distinct defense, MARTINAIRE alleges: 

I. 

MARTINAIRE has taken all necessar>' corrective actions to avoid repeated mishaps such 

that additional penalties are redundant and will not result in any increase in safety. 

SLXTH AFFIRMATIVE DEFENSE 

As and for a separate distinct defense, MARTINAIRE alleges: 

I. 

MARTINAIRE did not give the pilot of the subject fiights permission to carry or take on 

board the Purple Power cleaner, did not stand to profit from the pilot's activities, and the pilot 

was acting directly contrary to established company policy, procedures and manuals. Thus, the 

concept o\' Re.sponJeai Superior cannot be justly applied in this instance. 

FAA Case No. 201 l-GL-70-0205 

MARTINAIRE AVIATION, LLC'S ANSWER TO COMPLAINT 
SEVENTH AFFIRMATIVE DEFENSE 

As and for a separate distinct defense, MAR! INAIRE alleges: 

I. 

As a small company that operates only small aircraft with less than 100 

employees, the burden on MARTINAIRE caused by the proposed $35,000.00 penalty would be 

excessive. 

WHEREFORE, it is prayed that the Administrative Law Judge not enter an order that 

MARTINAIRE be assessed civil penalties in the amount of $35,000.00. or in any other amount: 

that the Complaint be dismissed with prejudice; and for such other and further relief as may be 

deemed appropriate. 

Dated this / / day ofJanuary 2012. 

MICHAEL L. D^WORKJlsJ AND 

ASSOCl?" 

Michael L. Dworkin 

Anorneys/or MARTINAIRE AVIATION. LLC 

FAA Case No. 2011-GL-70-0205 

MARTINAIRE AVIATION, LLC'S ANSWER TO COMPLAINT 

8 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this 17'^ day ofJanuary 2012, a true and correct 

copy of the foregoing MARTIINAIRE'S ANSWER AND AFFIRMATIVE DEFENSES was 

served as follows: 

Federal Aviation Administration Kate Barber, Esq. 

800 Independence Avenue SW Federal Aviation Administration 

Washington, DC 20591 Great Lakes Region, AGL-7 

Attn: Hearing Docket Clerk, AGC-430 ^'2300 East Devon Avenue 

Wilbur Wright Building-Suite 2W1000 ^ Des Plaines, Illinois 60018 

FAX {847)294-7498 

{Original and one copy sent via (FacxifnUe and Federal Express^ 

Federal Express} 

FAA Case No. 201 l-GL-70-0205 

MARTINAIRE AVIATION, LLC'S ANSWER TO COMPLAINT