maximum certificated takeoff weight.)  And the exception for approved minimum equipment lists exists mostly for airliners, commuters, air taxi operators, and the higher end of GA aircraft.  MELs have not been obtained for more general aviation aircraft because of the administrative burden in obtaining one, and the FAA’s limited capacity in handling a large number of such applications. 

Deactivation may mean a process as simple as the pilot pulling a circuit breaker to the open or off position or as complex as a maintenance task requiring a certificated and appropriately rated maintenance person to perform and record the deactivation. 
   
What is also complex for typical general aviation pilots and owners is that the inoperative instrument or equipment must not be part of the VFR-day type certification instruments and equipment prescribed in the applicable airworthiness regulations under which the aircraft was type certificated (not typically seen by the owner or pilot); indicated as required on the aircraft’s equipment list, or on the Kinds of Operations Equipment List for the kind of operation being conducted; required by Section 91.205 or any other rule of Part 91 for the specific kind of flight operation being conducted; or required to be operational by an airworthiness directive.

Here is an old enforcement case, admittedly extreme, illustrating that the mandate applies regardless of reasonableness.  A charter operator with a single 20-year-old airplane, a single-pilot operation, was fined $5,000 for operating his Piper Cherokee with one of its two glideslope indicators placarded “inoperative.”  Efforts to repair the intermittent glideslope were frustrated because it worked on the bench.  The other glideslope was working fine.  In an effort at compliance, he placarded the relevant nav receiver “GS INOP.”

It is ironic that his effort to comply with the regulation is what got him in trouble.  An FAA inspector, in the course of a ramp inspection, looked into the cockpit and saw the placard.  FAA argued that the placarding exception does not apply to charter operations.  Enforcement followed.  The operator tried to defend himself by explaining that his operations specifications, imposed on him by the FAA, prohibited him from operating IFR in his charter operation.  The island airport to which the operator routinely flew passengers didn’t even have an ILS.  

An appeal to the then acting FAA Administrator failed.  The administrator specifically held that the margin of safety was reduced.  As for an appropriate penalty, the Administrator believed that even though the fine amounted to 100 percent of the net revenues from charter operations for the year, the amount of the penalty was appropriate.  Perhaps technically correct but not reasonable.  I am confident that the result would be different today.  But the point is, the regulation could be strictly applied regardless of reasonableness.  
​

                                         Copyright © Yodice Associates 2017.  All rights reserved.
       
John Yodice is the former Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com
​

This procedure accomplishes two objectives.  It shows to the Inspector a positive safety and compliance attitude on the part of the pilot; and it evidences to the Inspector that an FAA certificated flight instructor has found the pilot competent on the matters to be tested.  I have never seen this procedure fail.  If it happened, it is rare.  On the other hand, we have rarely seen a successful appeal to the NTSB challenging the reasonableness of the reexamination request.

If a pilot faced with a reexamination request needs more detailed guidance, the pilot should seek professional help.

                                      Copyright © Yodice Associates 2012.  All rights reserved.
       
John Yodice is the former Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com

​After a hearing, an NTSB law judge denied the pilot’s appeal, believing the Fire Chief’s testimony over the pilot’s.  The full board affirmed the law judge.  The result is that the pilot is grounded until he produces evidence of a review (presumably dated within the prior 24 calendar months of the accident, though the NTSB decision does not discuss this aspect).  A serious and maybe impossible penalty.
 
For completeness I must mention that in a separate but related case, the FAA brought other charges against the pilot arising out of this same accident.  In addition to the recordkeeping violations, the pilot was charged with failure to familiarize himself “with all available information concerning that flight;” with “careless or reckless” operation; and with not actually having accomplished the review.  These charges resulted in a 180-day suspension of his private pilot certificate.  I am still scratching my head, unable to reconcile the two suspensions.
 
In any event, the main message of this column, making more explicit the secondary messages in past columns, is that we almost certainly will be asked for logbooks at a most inopportune time – after an aircraft accident or incident.  Knowing that, we should try to keep our logbooks up to date.  And as a footnote that you may not read anywhere else, in my opinion you may even update the logbooks after an FAA request so long as the entry is truthful and accurate.


                                         Copyright © Yodice Associates 2011.  All rights reserved.
       
    John Yodice is the former Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com

​​He then filed suit the United States District Court for the District of Columbia claiming that the lifetime revocation of his certificates was unlawful.  The pilot raised a number of constitutional and procedural challenges, none of which prevailed.  The pilot claimed that the lifetime revocation of his certificates violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.  Specifically, he claimed that the actions of the FAA and NTSB violated his “Constitutionally protected interests in traveling (privately in General Aviation Aircraft) by air,” his “Constitutional Right to Contract so as to earn a sufficient and adequate lawful living,” his “public right of transit through the navigable airspace” pursuant to [the Federal Aviation Act], and his Eighth Amendment right to be free from cruel and unusual punishment.  None of these challenges prevailed. The FAA moved to dismiss the lawsuit, and the court granted FAA’s motion, denying all the constitutional challenges.
 
The FAA Administrator has the authority to waive the lifetime revocation requirement if so requested by a law enforcement officer, and if the waiver will facilitate law enforcement efforts.  Another actual case illustrates the difficulty in getting a waiver.  An airman pleaded guilty to the crime of conspiracy to import a controlled substance.  The conspiracy involved the use of an aircraft.  The FAA issued an order revoking his airman certificate.  The Governor of Oklahoma sent a letter to the FAA Administrator asking that the certificate not be revoked.  The Governor said that the airman was from a family that he knew and respected, that the airman has been gainfully employed as a pilot for a medical flight service for the past three years; and that the airman had no criminal record or public safety violations during the past three years.  The Governor would be grateful if the lifetime revocation requirement was waived, as allowed in the statute.  The FAA Administrator refused.  According to the FAA Administrator, the letter did not address law enforcement matters, the second prong of the waiver provision.  On appeal to the NTSB, in a 1992 case, the Board ruled that it did not have jurisdiction to review the Administrator’s waiver authority.
 
An unusual and interesting case.  

​
                           Copyright © Yodice Associates 2000.  All rights reserved.
       
    
John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com

established by the Texas Supreme Court in ​1984.  The Texas Supreme Court held in favor of an owner in a case involving the crash of an insured aircraft that was one month out of annual inspection.  In the precedent case, the insurance policy stated "there is no coverage under the policy if the aircraft … airworthiness certificate is not in full force and effect."  An annual inspection is required in order to maintain an airworthiness certificate in effect.  It was undisputed that the lack of a valid airworthiness certificate was not the cause of the crash. 
 
In reading the insurance policy it was clear that it did not require a causal connection between the breach and the accident in order to justify a denial of coverage.  Yet, the Texas Supreme Court held that "an insurer cannot avoid liability under an aviation liability policy unless [the breach] is either the sole or one of the several causes of the accident."  How come?  How come the policy was not interpreted literally?  The "how come?" is that the Supreme Court said that to deny coverage would be unconscionable and against public policy.  The Supreme Court was not persuaded by the insurance company's argument that the majority of jurisdictions do not require causation.
 
Only two weeks after the Texas pilot qualification case related above, the Supreme Court of Nevada held differently.  The Nevada court held "that insurers need not establish a causal connection between an aviation policy exclusion and the loss in order to avoid liability so long as the exclusion is unambiguous, narrowly tailored, and essential to the risk undertaken by the insurer."
 
In the Nevada case, the owner had purchased his aircraft just a few months before it crashed into a residential backyard injuring the homeowner.  The homeowner sued the aircraft owner in Nevada state court.  The insurance company that insured the aircraft denied coverage.  It filed a lawsuit in federal court asking for a declaration that it had no obligation to pay damages to the injured homeowner or to the aircraft owner because of an insurance policy exclusion.
 
Like the 1984 Texas case, the insurance policy in this case excluded coverage when "the Airworthiness Certificate of the aircraft is not in full force and effect" or when "the aircraft has not been subjected to the appropriate airworthiness inspection(s) as required by current applicable Federal Aviation Regulations for the operation involved."  The owner initialed a clause in the insurance application stating that there would be no coverage for his aircraft "unless a standard airworthiness certificate is in full force and effect."
 
Although the aircraft had a current inspection and airworthiness certificate when the insurance policy came into effect, the certificate had lapsed and was not "in full force and effect" at the time of the accident. 
 
In this case, the federal court agreed with the insurance company.  On appeal to a federal appellate court, the federal court asked the Nevada Supreme Court to authoritatively answer the question under Nevada law.  The court did so, saying that it was joining the majority of jurisdictions, citing cases from Georgia, Louisiana, New Mexico, and Oklahoma.  It held that Nevada law does not require a causal connection between the exclusion and the loss in order for the insurance company to avoid liability.  The court, offering a public policy of its own, said "that aviation safety is enhanced when policy exclusions relating to safety are upheld, regardless of causal connection." 
 
So, here we have two real life cases reaching seemingly opposite results, but nevertheless helping us better understand aircraft insurance in a fairly typical problem area.  The advice to "read your policy," still good advice, in this instance wouldn't get us there.

                            Copyright © Yodice Associates 2006.  All rights reserved.

​John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com

​States citizenship requirement for registration, a very technical requirement. There are more.  FAR 47.41(a) enumerates the circumstances under which a certificate of registration becomes ineffective. As we will see, these types of violations will now be treated more seriously. 
 
Effective last month, the Federal Aviation Administration, in concert with the Transportation Security Administration, made an announcement that it will “revitalize and refocus its airspace monitoring capabilities” to ensure that only properly registered aircraft operate in the airspace over the United States.  Clearly, the FAA intends to prevent improperly registered aircraft from flying.  How this will be implemented remains to be seen.  The announcement also says that with respect to registrations that are noted on the FAA records as “in question” (a procedure that the FAA started a few years ago) notifications are going out to operators of aircraft that these aircraft “may be denied access” to the national airspace system.  We get a clue that in addition to denial of access to the airspace, individual enforcement actions will also be used.  The FAA/TSA notification says that notices of deficiency will be sent out, and that “a pilot deviation will be filed on the operator” whether he/she is the owner of the aircraft or not. All of which tells us that it is now more important than ever for us to assure that the aircraft we fly are properly registered.
 
There is another often-inadvertently-violated regulation that needs to be noted.  FAR 47.45 requires that the holder of an aircraft registration certificate notify the FAA of a change of address within 30 days.  If the FAA is notified of a change of address, a new certificate of registration will be issued, without charge.  Failure to notify of a change of address within that time doesn’t make the registration ineffective, but it does cause other problems and it is a regulatory violation.  Happily, many of the old addresses are updated through the triennial aircraft registration report that is sent to the owners of record of aircraft that have not had Registry activity within the past three years.
 
Don’t get caught unaware.  The mere fact that the aircraft contains within it a registration certificate that appears valid, doesn’t necessarily mean that it is.  For example, if the name that appears on the registration certificate is not the name of the current owner, that should be a red flag.  If you have doubt, check.  There is an easy way, though not foolproof, to help to determine if an aircraft is properly registered or if the registration is “in question?”  The FAA Aircraft Registry may be searched and updated electronically.  Visit the website (http://registry.faa.gov/aircraftinquiry) for more information.  

​was pulling on one of the propellers.  After the aircraft was out on the ramp, the owner continued to hold onto the towbar while the pilot went into the aircraft and set the brakes.  They both then went about the business of getting ready for the flight.  The pilot loaded bags on the aircraft and then escorted the two passengers to the aircraft and helped them to secure the door behind them.  When the pilot exited and reentered the aircraft, his business took him towards the rear of the aircraft.  He never passed in front of the aircraft, where the towbar would be obvious. 
 
The pilot felt that the owner, familiar with his own aircraft and the last wone physically holding on to the towbar while the pilot set the brakes, was responsible for ensuring the removal of the towbar before takeoff.  This was the pilot’s position when he appealed the FAA’s suspension to the National Transportation Safety Board.
 
A hearing was held before an administrative law judge of the NTSB.  After the hearing, the law judge affirmed the charges brought by the FAA but reduced the term of suspension.  The judge held that the pilot, as pilot in command, had the ultimate responsibility for the safe operation of the flight and that he failed in that responsibility.  However, the judge did find that the pilot had not been “reckless” in violation of FAR 91.13; rather, he found that the pilot had been “careless,” a lesser offense.  Considering all of the circumstances, the judge didn’t believe that a 120-day suspension ordered by the FAA was warranted.  He reduced it to 80 days.
 
The pilot appeased the judge’s decision to the full five-member Board, asserting the defense of “reasonable reliance.”  The Board rejected the pilot’s defense.  The Board restated its “reasonable reliance” rule, as follows:
 
“As a general rule, the pilot in command is responsible for the overall safe operation of the aircraft.  If, however, a particular task is the responsibility of another, if the PIC has no independent obligation (e.g., based on operation procedures or manuals) or ability to ascertain the information, and if the captain has no reason to question the other’s performance, then and only then will no violation be found.”  (The reference is made to “captain” because this law was developed mostly in cases involving aircraft requiring more than one pilot, principally airline operations.)
 
The Board said that the pilot failed to establish that the removal of the towbar was the responsibility of the owner. Furthermore, according to the Board, even if the owner had some responsibility (the pilot said that the owner had removed the towbar on a number of similar occasions in the past), the pilot had an independent obligation and ability to determine whether the towbar had been removed.  The pilot had the ultimate responsibility to ensure the aircraft’s airworthiness.  Had he made a preflight walk around the front of the aircraft after it was moved, he could have and should have seen the towbar.  For these reasons, the Board said, the pilot did not satisfy the terms of the general rule quoted above.
 
The implication of the case is that a pilot, even in a single-pilot operation, may reasonably rely on others, but that the Board will narrowly apply the “reasonable reliance” rule in the situation of single-pilot operation.

                                      Copyright © Yodice Associates 1996.  All rights reserved.       
 
John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com

​runways.  Aircraft using that runway fly almost directly over the home at low altitudes.  At the time that they purchased the home, the airport had a considerable amount of non-jet traffic, and was also regularly used by corporate jets.  But there was no commercial jet service. 
 
In 1984, Air Wisconsin conducted a test flight of one of its jets at the Tweed Airport.  It flew directly over the plaintiffs' home.  It caused quite a stir among the nearby residents.  The two plaintiffs and other residents immediately began a campaign to persuade the city to discontinue any further use of Tweed by Air Wisconsin jets, to no avail.  In 1985, the city allowed Air Wisconsin to begin regularly scheduled flights into Tweed.  Five days later, the plaintiffs sued the city in Federal court, which, for technical reasons had to be re-instituted in State court.  The plaintiffs claimed that the Air Wisconsin overflights resulted in a permanent taking of their property by inverse condemnation, for which they were entitled to just compensation under the Connecticut Constitution. 
 
Here is the legal situation.  The Connecticut Constitution provides, very similar to the United States Constitution, that a person's property may not be taken for a public purpose without just compensation.  A person's real property includes a reasonable amount of the airspace above the property.  In the 1946 landmark case of United States v. Causby, the United States Supreme Court established a standard for determining when an avigation easement in a person's property has been taken by inverse condemnation.  An avigation easement is sort of a public highway in the air permitting flight in airspace over a person's land. Inverse condemnation is a shorthand description of the way in which a landowner recovers just compensation for a taking of the landowner's property when formal condemnation proceedings have not been instituted.
 
At the trial court level, the plaintiffs' claim was rejected.  The claim was rejected because the court was not able to find that the plaintiffs sustained any significant economic damage as a result of the overflights.  The court went on to state that the value of the property had been lessened by virtue of the property's proximity to the airport, but that was the case in 1979 when the plaintiffs purchased it.  The trial court concluded that there had been a "taking", but that the taking occurred during the 1967 to 1975 period when commercial jet traffic operated there.  The plaintiffs could not prove that the Air Wisconsin overflights were more disruptive to the enjoyment of property rights than the jet overflights from 1967 to 1975.
 
At the trial, each side presented the testimony of a real estate appraiser regarding the value of the property before and after the Air Wisconsin overflights.  Each side relied on the comparable sales approach, which is a well- established valuation method, to estimate the fair market values of the property.  
 
The plaintiffs' appraiser estimated that the property had decreased in value from $90,500 prior to the Air Wisconsin flights, to $59,000 after they started.  He valued the property at $105,000 as of the time of trial in 1997.  
 
On the other hand, the city's appraiser testified that there was no discernable impact on the value of the property.  He testified that, based on the sales data he accumulated and analyzed, the properties in the flight zone showed an average annual percentage increase in value in the middle range of the overall market.
 
After listening to the detailed testimony, the trial court was more persuaded by the testimony of the city's appraiser, and expressly discredited the conclusions of the plaintiffs' appraiser.  For one thing, according to the court, the city's appraiser had superior credentials.  For another, the plaintiffs' appraiser had limited experience in residential appraisal in the particular area, whereas the city's appraiser had done extensive residential appraisal work in that locale.  For still another, the plaintiffs' appraiser did not restrict himself to comparable sales data, but instead used other valuation tools to bolster his conclusions.  As opposed to the plaintiffs' appraiser, the city's appraiser based his valuation solely on comparable sales figures, and limited his market study to the most relevant locale.  On these bases, the trial court chose to believe the city's appraiser.  The trial court rejected the plaintiffs' claim.
 
The plaintiff homeowners appealed the trial court's decision.  On appeal, the Connecticut Supreme Court reviewed the case in some detail, and then affirmed the trial court.
 
One of plaintiffs' arguments was that another, better appraiser might have succeeded in persuading the trial court that the property had lost value, where the appraiser that the plaintiffs used had failed.  In answer to this argument, the Supreme Court said: "It is far more likely, however, that, by the time the plaintiffs had purchased their home in 1979, the market already had adjusted for the likelihood of interference from jet flights into and out of Tweed.  In other words, any diminution in the value of the ... property may have been reflected in the price that the plaintiffs had paid for the property when they purchased it in 1979, after the first series of jet overflights from 1967 to 1975."
 
This decision could provide an important precedent in Connecticut, and a persuasive logic elsewhere.  A homeowner who buys a home near an established airport fully recognizing that the airport will continue to generate traffic near the home, in fairness should not be heard to complain about the airport. 

​                                         Copyright © Yodice Associates 1999.  All rights reserved.
       
    
John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com

This case tells us what can happen if an airman refuses to surrender a medical certificate that has been timely reversed by the FAA.  In this case, under the circumstances, it was a $5,000 fine.  The pilot had earlier reported to the FAA, as he was required to, that he had suffered an alcohol-related suspension of his driver’s license/privileges.  Some months later, the pilot applied to an Aviation Medical Examiner for a third-class medical certificate, and in routine fashion received it.  When the application was routinely reviewed by the Manager of the AMCD, the Manager, noting the driver license suspension, asked for additional information to determine the pilot’s eligibility to hold a medical certificate.  After the pilot failed to provide the requested information, the Manager reversed the issuance of the certificate within the 60-day period as extended by the request for additional information.  The Manager asked the pilot to return the certificate to the FAA, and offered a grace period.  The pilot again failed to respond, and the FAA initiated a civil penalty assessment proceeding seeking a $5,000 fine.  The FAA has a sanction guidance table that provides a range of sanctions for various violations, including for failure to surrender a certificate when legally demanded.

The FAA correspondence warned the pilot that he was subject to a civil penalty of up to $1,100 for each day the violation continued, but did offer to close the matter out if the pilot surrendered the certificate within 10 days.   The pilot did not surrender the certificate until 16-days after the grace period expired.
The pilot tried to avoid the fine by appealing to the National Transportation Safety Board.  He told the Board that “this whole process has been quite confusing and, regrettably, I did not act within the timelines requested of me.  As a father and business owner/operator, I am constantly busy with various activities that require my time.  Unfortunately, I did not always respond to the issues outlined in this case in a timely fashion.  For that, I regret allowing this issue to become a case at all….I submitted my information to [the Aerospace Medical Certification Division manager] and subsequently have surrendered my medical certificate.  I hope this letter makes it clear that the $5,000 penalty is not appropriate considering the nature of the case and I hope that you feel the same way.” 

But the Board, stressing that the FAA provided the pilot with ample opportunity to avoid the fine, affirmed the assessment of a $5,000 civil penalty.  The Board noted that the penalty assessed was at the low end of what the FAA could have sought under the sanction guidance table, representing a fraction of the $17,600 maximum that could have been made for the 16-day period, at $1,100 per day.

Nevertheless, we continue to advise that pilots should never voluntarily surrender a pilot or medical certificate to anyone including the FAA until he or she has gotten some expert advice.  This case represents a very limited exception.

​                                      Copyright © Yodice Associates 2012.  All rights reserved.
       
    
John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com