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 3 02012 

April27, 2012HEARING DOCKET 

Federal Aviation Administration 

800 Independence A venue SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

(Via Federal Express) 

Re: Martinaire Aviation:, 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, Administrative Law Judge 

Kate Barber, Complaintant 's Counsel 
MICHAEL 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 0 2012 

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 ANSWER TO 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 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 Penalty, 

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

each and every part thereof, 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 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 part 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 it was discovered by an FAA Special Agent. 

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 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 ANSWER TO COMPLAINT 

2 
thereof, both generally and specifically, conjunctively and disjunctively. Answering the third 

line of Paragraph 3, 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 avers that it had fully met its employee hazardous material 

training requirements. 

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

hazardous material under Section 172.101 of the 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 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. 

FAA Case No. 2011-GL-70-0205 

MARTINAIRE AVIATION, LLC'S AMENDED ANSWER TO COMPLAINT 

3 
Answering Paragraph 7, MARTINAIRE admits that the Purple Power was not 

accompanied by a Shipper's Declaration of Dangerous 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 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 every part thereof, 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 part thereof, both generally and specifically, 

conjunctively and disjunctively. 

Answering Paragraph 10, 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 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 every part thereof, both generally and specifically, 

conjunctively and disjunctively. 

FAA Case No. 2011-GL-70-0205 

MARTINAIRE AVIATION, LLC'S AMENDED ANSWER TO COMPLAINT 

4 
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, reglilation or order. 

IV. 

Answering Section IV, paragraph 1, Respondent avers that 49 U.S.C. Section 5123 spe~s 

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 Complaimint's 

FAA Case No. 2011-GL-70-0205 

MARTINAIRE AVIATION, LLC'S AMENDED ANSWER TO COMPLAINT 

5 
own Sanction Guidance Table. Further, the sanction is compounded, in violation of the 

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 discrepancies with 49 CPR § § 171, 172 and 173 are the product of simple 

human error taken in violation ofMARTINAIRE's own policies and procedures and are in no 

way indicative ofMARTINAIRE's regulatory 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. 

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: 

1. Counseled the pilot involved in incident alleged in the Complaint; 

FAA Case No. 2011-GL-70-0205 

MARTINAIRE AVIATION, LLC'S AMENDED ANSWER TO COMPLAINT 

6 
u. Counseled all flight department personnel regarding in the interests of preventing 

recurrence of such incidents; 

111. 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 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 of the subject flight permission to take on board the 

infringing liquid, did not stand to profit from the pilot's activities; and the pilot was acting 

directly against company policy, procedures and manuals. Thus, the concept of Respondeat 

Superior cannot be justly applied in this instance. 

FAA Case No. 2011-GL-70-0205 

MARTINAIRE AVIATION, LLC'S AMENDED ANSWER TO COMPLAINT 

7 
SEVENTH 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 on MARTINAIRE caused by a $35,000.00 penalty would be great 

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 27th day of April, 2012. 

MICHAEL L. DWO 

AS ATES 

ichael L. Dworkin 

Attorneys for MARTINAIRE AVIATION, LLC 

FAA Case No. 2011-GL-70-0205 

MARTINAIRE AVIATION, LLC'S AMENDED ANSWER TO COMPLAINT 

8 
.. 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this 27th day of April, 2012, a true and correct 

copy of the foregoing MARTINAIRE'S AMENDED ANSWER TO COMPLAINT was 

served as follows: 

Federal Aviation Administration 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1 000 

800 Independence Avenue SW 

Washington, DC 20591 

{Federal Express} 

The Honorable Richard C. Goodwin 

Administrative Law Judge 

Office of Hearings, M-20 

Department of Transportation 

1200 New Jersey Avenue, S.W. 

Washington, DC 20590 

FAX: 1-202-366-7536 

{FAX and Federal Express} 

Kate Barber, Esq. 

Federal Aviation Administration 

Office of the Regional Counsel 

Great Lakes Region, AGL-7 

2300 East Devon 

Des Plaines, IL 600 18 

FAX: 1-847-294-8293 

{FAX and Federal Express} 

FAA Case No. 2011-GL-70-0205 

MARTINAIRE AVIATION, LLC'S AMENDED ANSWER TO COMPLAINT 

9