SERVED: August 27, 2015 

U.S. DEPARTMENT OF TRANSPORTATION· 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

AERO MICRONESIA 

FDMS NO. FAA-2012- 0468 

(Civil Penalty Action) 

INITIAL DECISION·OF ADMINiSTRATIVE LAW JUDGE 

I. Introductory Comment 

On or about March 25, 2011. Aero Micronesia (hereinafter "Aero") operated a Boeing 

727-200 aircraft, Civil Registration No. N319NE, on a cargo carrying flight from Majuro Atoll 

to Honolulu International Airport (hereinafter "HNL"). Incident to the above operation, 

N319NE carried an item of cargo, which included an aircraft engine in zone 8. The "Load 

Planner- Weight Manifest" for the above flight showed that the weight of the cargo indicated was 

distributed across zones 7, 8, and 9, but in fact the load was limited to zone 8. 

II. Procedural History 

The Federal Aviation Administration,(herein,after "FAA") filed its Complaint on May 11, . i. • .Or . .1 ,;.)iVt, 

2012. Aero filed an Answer on June 15,2012. 

III. Hearing 

A hearing was held on December 1, 2014, in Honolulu, HI. 

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The matter is now ready for decision. 

N. Jurisdiction 

Aero dba "Asia Pacific Airlines" was at all times mentioned herein was, the holder of Air 

Carrier Certificate No. 15PA400I, auth~rized ~~. c<;>~qpct flight operations, cargo only, under part • ,;1 

121 of the Federal Aviation Regulations (hereinafter "FARs'~ and was subject to those 

regulations. 

V. Burden ofProof 

The FAA is the petitioning party with the initial burden of proof. (14 C. FR.§ 13.224) 

VI. Allegations 

1. FAA's recitation of facts 

On or about March 25, 2011, Aero operated a Boeing 727-200 aircraft, Civil Registration 

No. N319NE, on a cargo carrying flight from Majuro Atoll to HNL. Incident to the above 

operation, N319NE carried an item of cargo, which included an aircraft engine in zone 8. The 

"Load Planner- Weight Manifest" for the abbve mglit showed the weight of the cargo was 

distributed across zones 7, 8, and 9. The weight of the cargo was not distributed across zones 7, 

8, and 9, but was instead limited to zone 8. As a result, the Load Planner- Weight Manifest" was 

not accurate. The maxim pro allowable weight in zone 8 ofN319NE was 10,000 pounds. 

N319NE contained a placard indicating that the maximum allowable weight for zone 8 was 10, 

·ooo pounds. The weight of the cargo exceeded 10,000 pounds. Alternatively, the Load PlannerWeight Manifest" showing the total weight of said cargo did exceeded 10.000 pounds was not 

accurate. 

2. Aero's recitation of facts 

Aero denied the allegations of the Complaint. 

'J'. 

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VII. Issues 

Did Aero violate 14 C.F.R. § 91.9(a), and/or 14 C.F.R. § 121.665. 

VIII. Summary of Testimony and Evidence 

All admitted testimonial and documentary evidence was reviewed and considered. Only 

brief highlights are summarized herein. 

1. FAA's Case 

Clarence Kanae 

Clarence Kanae1 (hereinafter "Kanae") t~stified at the time of the alleged incident he had 

FAA oversight of Aero as the PrincipafOperations'I~spector (hereinafter "POI"). On March 25, 

2011, he did an unannounced ramp inspection of Aero operations in HNL. Kanae checked on the 

currency of pilot certificates, medical certificates, looked at the flight logs and weight manifest, 

and safety equipment to make sure that the safety equipment inspections were current. During 

the inspection Kanae noticed the ground crew was attempting to off load a heavy piece of cargo, 

an aircraft engine. 

Kanae observed that the engine in its entirety, to include the engine stand was strapped to 

a LD7 pallet, which, in laymen's terms, was called a cookie sheet pallet. The engine was only 

strapped and configured to be loaded on that one particular cookie sheet pallet. And that pallet 

could only fit one actual position in the aircraft. Ka~me observed, in comparison to the load 

r ··•. • /\,l. . 

manifest, it indicated that all the weight was transferred across three zones. But in fact, the way 

it was rigged Kanae observed it was only secured for shipment on one zone. Kanae testified the 

computed weight manifest was at variance with his observations of how the cargo was 

distributed within the aircraft. The cargo documentation showed the engine weighed 10,400 

pounds. 

1 Tr. p. 9, I. 19 top. 58, I. 7. 

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The FAA did not weigh the engine to verify the documented weight at HNL. 

According to the load manifest the engines was distributed over zones 7, 8, and 9. 

Kanae's observed that the cargo was not loaded over those zones. ! ~ \ 

One pallet showed an aircraft engine at td;o84 pounds. It then showed.a secondpallet 

and saying a second aircraft engine, at 316 pounds, implying the 10,400 pounds was spread 

across, was on two different pallets. 

Kanae agreed that normal procedure when shipping an engine was to remove fluids and 

oils. Kanae testified the engine was covered and he did not know if all the components had been 

removed from the engine, whether casters were on the pallet, whether all fluids had been 

removed from the engine. The weight on the manifest was assumed to be correct but was not 

verified at the point of origin and/or HNL. Kanae testified the engine was weighed in Guam, not 

in HNL. 

Catherine R. Flores2 

Catherine R. Flores (hereinafter "Flores") testified she was the warehouse supervisor for 

United Airlines. Flores testified the documentation showed that Aero shipped out a 737 aircraft 

engine, total ofthree pieces weighing 10,400 pounds from Guam to HNL, with a final 

destination of Los Angeles. The documentation showed the shipment broken down into two 

pallets. Two ofthe three pieces were at 316 pounds; the remaining piece at 10,084 pounds. 

The total weight was 10,542 because the 10,084 pounds was just the weight of the engine 

and the engine stand. The 7,458 pounds, was the total weight for the pallet and straps used to 

secure the engine stand. 

They did not have the scale to weigh the engine, so they were not able to put a weight on 

the documentation. Flores believed the engine:.we~ghed 10,400 pounds because the casters were 

2 Tr. p. 59, I. 12 top. 102, I. 18. 

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still on the pallet and they normally weight 680 pounds total. 

Flores was not aware of the maximum weight of the scale at the cargo area on Guam 

where the engine in question was weighed. She did not know who weighed the engine. To 

weigh and engine you would need to remove it from the stand, a difficult operation. All the 

engines come with stands attached; She did not know if the engine at the warehouse was capable 

of weighing objects over 10,000 pounds. She did not know if the engine was actually weighed 

since that took place on the opposite side of the air field. 

2. Aero's Case 

Michael Quinn3 

Michael Quinn (hereinafter "Quinn") testified he founded Aero, was heavily involved in 

writing the manuals for Aero, including the load planning and weight manifest. He does all the 

weight and balance calculations for the aircraft. 

With respect to this incident, the engine was brought to Aero on the west side of the field 

along with the documents. Quinn testified the engine was delivered a bit late. The crew was 

already in the process of setting up the flight. When the crew saw the documents, the airway bill 

and the documents on the engine, they believed the engine was too heavy to carry. Aero was 

well aware of the limitations of their aircraft; well aware of the 10,000 pound limit for the pallet 

" 

position number 8 in which the engine was loaded. The crew went back to Continental and said, 

"You've got to take some stuffoffthis engine and get the weight down, which they did." That's 

the 316 pounds that wound up on a separate pallet in the back of the airplane. 

To the knowledge of the people that worked for Quinn in Guam, Continental4 had never 

weighed one of these engines because their scales don't go that high in Guam at that time. Aero 

3 Tr. p. 104, I. 14 top. 130, I. 19. 

4 Which had the facility with the scale on Guam. 

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was confident that after they took the weight off the engine, even though the casters were still on, 

that we were under 10,000 pounds. The maximum weights across those three positions (7, 8 and 

9) were something like a little bit more than 28,000.pounds that you would have been able to put 

in those three positions. If the engine had actually weighed more than 10,000 pounds, you would 

have had to put it on a pallet and braced it to where some of the weight was actually in the other 

pallet position. 

They were confident that the engine weighed less than 10,000 pounds. The paperwork 

didn't reflect that necessarily; the paperwork was filled out incorrectly. They took off not having 

corrected paperwork. 

Quinn testified that the engine was not weighed in Guam because at the time, Guam 

didn't have a scale to weigh something this heavy, or as heavy as they claimed the engine 

weighted. 

Quinn said they had an aircraft that'took oifh.t 100 tons, 200,000 pounds. It carried 

55,000 pounds of cargo; 400 pounds was nothing in the scheme of things. It was a very, very 

minor amount of weight in context of what Aero did. 

Continental did not keep a record of what was on the engine when it was weighed. 

The engine was never weighed in Guam; it was never weighed in Honolulu. And as Ms. 

Flores testified, there was no way to weigh an individual engine. 5 

Aero admitted the paperwork was incorrect. 

Credibility determinations 

All witnesses were found to be credible. 

IX. Law 

A. 14 C.F.R. § 91.9 (a) states: 

5 To do so would require taking the engine off the stand and laying it down which was probably illegal. 

6 
Except as provided in paragraph (d) of this section, no person may operate a civil aircraft 

without complying with the operating limitations specified in the approved Airplane or 

Rotorcraft Flight Manual, markings, and placards, or as otherwise prescribed by the 

certificating authority of the country of registry .. 

B. 14 C.F.R. § 121.665 states: 

Each certificate holder is responsible for the preparation and accuracy of a load manifest 

form before each takeoff. The form must be prepared and signed for each flight by 

employees of the certificate holder who have the duty of supervising the loading of 

aircraft and preparing the load manifest forms or by other qualified persons authorized by 

the certificate holder. ::. · i' :. : . · 

X. Findings of Fact 

We find that the evidentiary facts, by a preponderance of the evidence standard, do not 

support a finding that Aero violated 14 C.F.R. § 91.9 (a). There wis no conclusive evidence 

that the engine was weighed at either the embarkation of the engine and/or destination with a 

scale capable of accurately weighing the engine. The FAA failed it its burden of proof. 

We find that the evidentiary facts, by a preponderance of the evidence standard, do 

support a finding that Aero violated 14 C. F. R. § 121. 665 . Aero admitted that in its haste to 

depart Guan, it did not correct paperwork it believed to be inaccurate. 

XI. Penalty and Mitigation Considerations •. J .•. 

Aero admitted one allegation set forth in the complaint. 

We found the violation alleged. 

The FAA argued that the penalty requested of $19, 250 was appropriate. 

Aero was cooperative and responsive to FAA concerns. 

The FAA had a cooperative working relationship with Aero. 

The FAA failed to prove by testimony and/or evidence ofhow it arrived at the figure of 

$19,250. We are left to speculate how the figure was determined. 

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.l. 

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While a penalty calculated in accordance with the FAA's policy guidance should stand, 

,, 

absent a showing of the Aero's inability_ to pay; the. evidence and testimony did not support the ·, ' 

penalty requested. While the FAA was entitled to substantial deference in establishing an 

appropriate civil penalty, we cannot ignore our role to evaluate the testimony and evidence. 

The ultimate weight discrepancy was well within the performance parameters of the 

aircraft. 

Taking the totality of the testimony and evidence into consideration we find a penalty in 

the amount of$5,000 is appropriate under the circumstances. 

WHEREFORE, evidence and testimony having been heard and considered it be and is 

hereby ORDERED as follows: 

a. The FAA failed to prove Aero violated 14 C.F.R. § 91.9 (a) and that violation be 

and is hereby DISMISSED; anq , .. 

b. The FAA proved and Aero adtiiitted 'the violation of 14 C. F. R. § 121. 665; and 

c. Aero be and is hereby assessed a penalty in the amount of$5,000 for violation 

14 C.F.R. §121.665. 

Richard C. Goodwin 

U.S. Administrative Law Judge 

Attachment - Service List 

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.}·."',> "/~'~·l~, 

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CORRECTED 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

', ·~ 

Wilbur Wright Building-Suite 2W10001 

ONE COPY 

David M. Kirstein and Lyndsey M. Grunewald 

Kirstein & Young, PLLC, Respondent's Counsel 

1750 K Street, N.W., Suite 200 

Washington, DC 20006 

TEL: 202-331-3348 

FAX: 202-331-3933 

Michael R. Quinn, President. 

Aero Micronesia, Inc. dba Asia Pacific Airlines, Inc., Respondent 

156 Diablo Road, Suite 203 

Danville, CA 94526 

TEL: 925-362-4430 

FAX: 925-362-4432 (' 

Don Bobertz, Complainant's Counsel 

Office ofthe Regional Counsel, AWP-7 

POBox 92007 

Los Angeles, CA 90009-2007 

TEL: 310-725-3454 

FAX: 310-725-6816 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

FAX: 202-366-7536 

FDMS No. FAA-2012-0468 

(Civil Penalty Action) 

1 Service was by U.S. Mail. For service in person or by etcpedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S;W., Wilbur Wright Building-Suite 2Wl000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430. 

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