465 California Street Suite 210 

## • San Francisco California 94104 

## • (415) 421-2500 Fax (415) 421-2560

www.avialex.com law@avialex.com 

### Michael L. 

### Dworkin and Associates Law Offices 

# RECEIVED APR 302012 April27, 2012HEARING 

# DOCKET
Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 (Via FederalExpress)
Re: MartinaireAviation:, LLC FAA Case No. 2011-GL-70-0205 DMS No. FAA-2011-1295

Dear Ladies and Gentlemen:**~:.:~.]**

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Enclosed herewith for filing, are an executed original and one copy each of Martinaire Aviation, LLC's Amended Answer to Complaint.

cc: The Honorable Richard C. Goodwin,AdministrativeLawJudge Kate Barber, Complaintant 's CounselMICHAEL L. DWORKIN #64047 MICHAEL L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 San Francisco, California 94104 Telephone: (415) 421-02500 Facsimile: (415) 421-2560 Email: law@avialex.com Attorneys for MARTINAIRE AVIATION, LLC

# t~ECEIVED AJ't{ 3

## 02012 

# 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. 2011-GL-70-0205 FDMS No. FAA-2011-1295 MARTINAIRE AVIATION, LLC'S AMENDED ANSWERTO COMPLAINT Judge: The Honorable Richard C. Goodwin

Martinaire Aviation, LLC ("MARTINAIRE"), by and through its undersigned counsel, hereby files its Amended Answer to Complaint, pursuant to Rule 209 oftheRules ofPractice, (14 CFR 

### § 13.213), and states as follows: I. MARTINAIRE admits that itwas advised through a Notice ofProposed Civil Penalty, issued onJuly 1, 2011, thatthe FAAproposedto assess a civil penalty inthe amount of$90,000and thatthrough a Final Notice ofProposed Civil Penalty, issued onDecember 19, 2011, thatthe FAAproposedto assess a civil penalty in the amount of$35,000, and that MARTINAIRE submitted a writtenrequest for a hearing onDecember 22, 2011. Except as expressly admitted above, MARTINAIRE denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. II.

Answering Paragraph 1, MARTINAIRE admits that a one-gallon container of"Purple Power Industrial Strength Cleaner/Degreaser" (hereinafter "Purple Power") was carried onboard
one ofits 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 partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 2, MARTINAIRE admits that the above-described Purple Power was carried in aircraftN9505B from Cadillac, MI (CAD) to Ludington, MI (LDM) and thento Capital City Airport inLansing, MI (LAN), where it was discovered by anFAA Special Agent. Except as expressly admitted above, MARTINAIRE denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering the first two lines ofParagraph 3, MARTINAIRE lacks information or belief sufficientto answerthe allegations contained in Paragraph 3 ofthe C<?mplaint and based thereon, denies each and every, all and singular, allegations contained therein, and each and every part FAA Case No. 2011-GL-70-0205 MARTINAIRE AVIATION, LLC'S AMENDED ANSWERTO COMPLAINT 2thereof, both generally and specifically, conjunctively and disjunctively. Answering the third line ofParagraph 3, MARTINAIRE denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively and specifically avers that ithad fully met its employee hazardous material training requirements. Answering Paragraph 4, MARTINAIRE admits that Purple Powerhad been classified as a hazardous material under Section 172.101 ofthe Hazardous Materials Regulations (hereinafter "HMR"). MARTINAIRE is informed and believes and thereon alleges that at some time in 2011, Purple Power was declassified as a hazardous material and is no longer DOT-regulated. Except as expressly admitted above, MARTINAIRE denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 5, MARTINAIRE admits thatthe 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 partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 6, MARTINAIRE admits thatthe shipmentwas not labeled "CARGO AIRCRAFT ONLY." Except as expressly admitted above, MARTINAIRE denies each and every, all and singular, allegations containedtherein, and each and every partthereof,

·both generally and specifically, conjunctively and disjunctively and affirmatively avers thatthe

subject aircraft was a cargo aircraft.
FAA Case No. 2011-GL-70-0205 MARTINAIRE AVIATION, LLC'S AMENDED ANSWERTO COMPLAINT 3Answering Paragraph 7, MARTINAIRE admits that the Purple Power was not accompanied by a Shipper's Declaration ofDangerous Goods. 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 8, MARTINAIRE admits thatthe Purple Power was not • accompanied by shipping papers containing the proper shipping name, hazard class, appropriate prefix, volume and/or weight orbasic description. Except as expressly admitted above, MARTINAIRE denies each and every, all and singular, allegations containedtherein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 9, MARTINAIRE denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 10, MARTINAIRE denies each and every, all and singular, allegations containedtherein, and each and every partthereof, 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 partthereof, both generally and specifically, conjunctively and disjunctively. Answering Paragraph 12, MARTINAIRE denies each and every, all and singular, allegations containedtherein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively. FAA Case No. 2011-GL-70-0205 MARTINAIRE AVIATION, LLC'S AMENDED ANSWERTO COMPLAINT 4III. Answering SectionIII, paragraphs 1 (a)- (i), MARTINAIRE denies each and every, all and singular, allegations containedtherein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively, and specifically denies that itviolated the cited sections ofTitle 49, Code ofFederal Regulations and further denies that it violated any other governmental law, rule, reglilation or order.
IV. Answering SectionIV, paragraph 1, Respondent avers that 49 U.S.C. Section 5123**spe~s** for itself. Answering SectionIV, paragraph 2, MARTINAIRE denies each and every, all and singular, allegations contained therein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively, and specifically denies that a civil penalty in any amount is appropriate under the facts and circumstances ofthis case. 

### AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE As and for a separate and distinct defense, MARTINAIRE alleges: I. The sanction soughtby Complainant is unwarranted by the facts, safety in commerce and the public interest andis not only excessive, but, far exceeds policy, precedent and Complaimint's FAA Case No. 2011-GL-70-0205 MARTINAIRE AVIATION, LLC'S AMENDED ANSWERTO COMPLAINT 5own Sanction Guidance Table. Further, the sanction is compounded, inviolation ofthe 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 withoutbasis orjurisdictioninlawor fact.

THIRD AFFIRMATIVE DEFENSE As and for a separate distinct defense, MARTINAIRE alleges: I. Any and all discrepancies with 49 CPR 

### § § 171, 172 and 173 are the product ofsimple humanerrortaken inviolation ofMARTINAIRE's ownpolicies and procedures and are inno way indicative ofMARTINAIRE'sregulatory compliance disposition the relevant employee was adequately trained and qualified and has since received additional training and internal audits have shown adequate compliance levels has been reached.

FOURTHAFFIRMATIVE DEFENSE As and for a separate distinct defense, MARTINAIRE alleges: I. MARTINAIREhas proactively mitigated any and all damage such thatthis action is unwarranted by policy orthe need for safety. Specifically, MARTINAIRE has:
1. Counseled the pilot involved in incident alleged inthe Complaint; FAA Case No. 2011-GL-70-0205 MARTINAIRE AVIATION, LLC'S AMENDED ANSWER TO COMPLAINT 6u. Counseled all flight departmentpersonnel regarding inthe interests ofpreventing
recurrence ofsuch incidents;
111. Provided its personnel with additional Hazardous Materials training so as to prevent recurrent ofsuch incidents, including:
a. Hazardous MaterialRecognition; and b. Acceptance and Transport ofDangerous Goods.
IV. Updated and revised its Hazardous Materials Training Program to specifically address saidproblems and ensure future compliance.

FIFTH AFFIRMATIVE DEFENSE As and for a separate distinct defense, MARTINAIRE alleges: I. MARTINAIREhas taken all necessary corrective actions to avoid repeated mishaps such that additional penalties are redundant and will not result in any increase in safety.

SIXTH AFFIRMATIVE DEFENSE As and for a separate distinct defense, MARTINAIRE alleges: I. MARTINAIRE did not give the pilot ofthe subject flight permission to take on board the infringing liquid, did not standto profit from the pilot's activities; and the pilotwas acting directly against company policy, procedures and manuals. Thus, the concept ofRespondeat Superior cannotbejustly applied inthis instance.

FAA Case No. 2011-GL-70-0205 MARTINAIRE AVIATION, LLC'S AMENDED ANSWER TO COMPLAINT 7SEVENTH AFFIRMATIVE DEFENSE As and for a separate distinct defense, MARTINAIRE alleges: I. As a small company that operates only small aircraft with less than 100 employees, the burden onMARTINAIRE caused by a $35,000.00 penalty would be great
WHEREFORE, it is prayed thatthe Administrative LawJudge not enter an order that MARTINAIRE be assessed civil penalties inthe amount of$35,000.00, or in any other amount; that the Complaintbe dismissed with prejudice; and for such other and further reliefas may be deemed appropriate. Datedthis 27th day ofApril, 2012.
MICHAEL L. DWO AS ATES
ichael 

### L. Dworkin Attorneys forMARTINAIREAVIATION, LLC

FAA Case No. 2011-GL-70-0205 MARTINAIRE AVIATION, LLC'S AMENDED ANSWERTO COMPLAINT 8

# ..
CERTIFICATE OF SERVICE The undersigned hereby certifies that onthis 27th day ofApril, 2012, a true and correct copy ofthe foregoing MARTINAIRE'S AMENDED ANSWERTO COMPLAINT was served as follows: Federal Aviation Administration Attn: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2W1000 800 Independence Avenue SW Washington, DC 20591 {Federal Express}
The Honorable Richard C. Goodwin Administrative Law Judge Office ofHearings, M-20 Department ofTransportation 1200NewJersey Avenue, S.W. Washington, DC 20590 FAX: 1-202-366-7536 {FAXandFederal Express} Kate Barber, Esq. Federal Aviation Administration Office ofthe Regional Counsel Great Lakes Region, AGL-7 2300 East Devon Des Plaines, IL 60018 FAX: 1-847-294-8293 {FAXandFederalExpress}

FAA Case No. 2011-GL-70-0205 MARTINAIRE AVIATION, LLC'S AMENDED ANSWER TO COMPLAINT 9