John Yodice's Pilot Counsel Columns

PILOT-COUNSEL: Low Flight: A Case Study

6/8/2021

June 2021 editorial comment and update: This article first appeared in the April 2001 AOPA PILOT magazine. So, what about doing a low pass in connection with a practice approach or a simulated emergency landing approach? How does the FAA view such maneuvers? Taking into consideration the exception clause of FAR 91.119 “Except when necessary for takeoff or landing, no person may operate an aircraft fellow the following altitudes…”, there is an old case (circa 1993) where a pilot was cited for operating below minimum safe altitudes and for careless or reckless operation in connection with a low pass over a runway. The pilot, flying a Learjet, maintained that he was demonstrating a practice landing approach relying on the takeoff and landing exception of FAR 91.119. The FAA issued an order of suspension and on appeal, the NTSB acknowledged that simulated landings at airports are indeed allowed, but ruled that the minimum safe altitude exception was inapplicable where an unsuitable landing site is used. In this case, the low pass was made over a gravel runway. The NTSB cited, as precedential, a previous case where they ruled against a pilot of a Lockheed Electra who flew a rejected landing approach to a 2,000 foot long “grass-dirt-sod” airstrip. The latter NTSB decision stated in part “…that the respondent’s aircraft was not equipped for landings on gravel. It therefore follows that the runway was unsuitable for a landing by that aircraft. Consequently, we must find that the exception set forth in the prefatory clause of section 91.119 does not apply to respondent’s practice approach maneuver.”

Applying the court's logic, pilots practicing engine out emergency landings away from the airport should also make certain to select a suitable landing site and break off an approach at the appropriate altitude for the overflight area. In other words, abide by the minimum safe altitudes at all times unless you’re actually taking off or landing. And, don’t forget that if an actual emergency exists, pilots may deviate from any rule, including FAR 91.119.

Many, if not most, pilots have made low passes in their airplanes, sometimes to say hi to friends or family on the ground, sometimes just to sightsee. These low passes are perfectly legal operations so long as they are not done carelessly or recklessly, and so long as they are done at or above the minimum safe altitudes set out in the Federal Aviation Regulations.

One of the most frequently cited regulations charged against general aviation pilots in FAA enforcement cases is FAR 91.119, Minimum Safe Altitudes.

Are pilots out there intentionally busting these minimums? Some few are. But, generally? I don’t think so. At least, not in most of the cases I have seen. In those cases pilots are usually surprised to later find the FAA investigating their flights. So, pilots need to be warned that a low flying, even at altitudes they believe are above the minimums, could be problematic. The dispute, as you can guess, is about exactly how high the airplane was when it flew over some complaining ground witness, usually a non-pilot.

It was a sunny Sunday afternoon. Perfect flying weather. A woman was standing in her backyard washing her car. She saw an airplane flying overhead. It made three circling passes. On one of the passes, she looked straight up and saw an airplane pass over her at what she considered to be an extremely low altitude. The sound of the airplane was very loud. She said the pass was so low and so loud that it frightened her. She reported it to the FAA.

What was the nature of the area over which these passes took place? The woman described her neighborhood as rural, mostly five acre residential lots. Her particular lot was ten acres. Obviously, not a congested area. Was she able to say how high the airplane was as it passed over her? Well, not exactly. She couldn’t say how high the airplane was in feet above the ground. Not unusual in these cases involving non-pilot complaining witnesses. But, she was able

to say that it passed over her and her house at about two and a half times the height of the surrounding trees. The trees nearby were about 80 to 85 feet high. Using this method of estimating the height of the airplane, that would make the pass at an altitude of about 200 feet.

She was able to identify the airplane to the FAA as a small white single-engine “Cessna,” a name she equated with small airplanes. She had jotted the registration number down on a napkin. Using the registration number, the FAA was able to look up the owner of the airplane. The FAA called the owner and asked who was flying the airplane that day. The owner checked the logbooks and identified a pilot.

The other side of the story. A young private pilot, a cadet at a well-known military academy, by all accounts a sterling youth, was home for the weekend. His was a flying family. His father, a high-ranking military officer, was a pilot and flight instructor. His brother was also a pilot. The father had taught both his sons to fly.

On this day, our young pilot was flying a Cessna 150 with his brother as a passenger. They were flying over their home, looking for their father who was out by the barn working. The father waved. They circled a few times and then headed out. This kind of flyby of their home was something they had done many times before. They didn’t think there was anything usual about the flight. They were quite surprised to find much later that the FAA was investigating the flight.

Did the airplane pass over the woman and her house as low as 200 feet? Not according to the pilot. The airplane never flew lower than 500 feet over the property. The pilot was sure because, as he always had, he made sure that his indicated altitude was always above 800 feet, which assured at least 500 feet above the ground. The father was a stickler for safety and compliance with the regulations.

An FAA inspector was assigned to investigate the woman’s complaint. The young pilot admitted to the FAA flying the airplane that day, over his home nearby the woman’s house. As a result of the FAA investigation, the FAA ultimately brought an enforcement action against the pilot. The FAA suspended the pilot’s license for 60 days, charging him with violating FAR 91.119 (a) and (c) and FAR 91.13(a). The FAA specifically charged that the pilot “operated an aircraft over a residential neighborhood ... below an altitude of 500 feet above the highest obstacle within a horizontal radius of 2000’ of the aircraft” (garbling two different provisions of the same regulation).

Since we are charged with knowing them, it is worth setting out both regulations in full.

FAR 91.119 Minimum Safe Altitudes: "General. Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:
“(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazards to persons or property on the surface.
“(b) Over congested areas. Over any congested area of city, town, or settlement, or over any open air assemblage of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.
“(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure." [Helicopters have a special provision.]

FAR 91.13(a), Careless or Reckless Operation is almost always thrown in by the FAA in operational violation cases. It provides:
“(a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another."

The pilot didn’t feel that he had violated either regulation. He appealed the 60-day suspension to the NTSB. An evidentiary hearing was held before an NTSB law judge. The battle was over the actual altitude of the aircraft as it passed over the woman and her house. The woman testified to her estimate of the altitude of the aircraft using the trees on her property. On the other hand, the pilot, his father, and his brother each testified that the airplane was never closer than 500 feet. The law judge chose to believe the woman. The law judge did not credit the testimony of the pilot, his brother, or his father, probably considering their testimony self-serving, or maybe just in error. However, the law judge did throw out the FAR 91.119(a) charge and reduced the suspension to 45 days. The judge found that the FAA had not proved that the pilot could not have made a safe emergency landing in the event of a power failure.

The pilot then appealed the law judge’s decision to the full NTSB, a procedure he was entitled to. The Board denied his appeal, affirming the judge’s decision and the 45-day suspension.

The interesting aspect of the appeal was a challenge to the complaining witness’ ability to estimate altitude. Here is what the Board said: “Specifically, we do not agree that the Administrator's witness' altitude estimate was deficient because she did not herself express it in terms of feet above the ground. She had no hesitancy in asserting that the Cessna passed over her and her house at about two and a half times the height of the surrounding trees, established to be around 80 to 85 feet. Nothing in this record suggests that such an estimate is any less reliable than those that rest on an observer's professed or presumed expertise in judging distances."

Whether or not the airplane flew below 500 feet on the pass, is not the main point. That was litigated and resolved. A low pass can lead to the suspension of a pilot’s certificate, even if the pilot honestly believes he or she operated in compliance with the regulations. Pilots need to know that, and make allowance for it.

Copyright © Yodice Associates 2001. 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

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PILOT-Counsel: Instructor Liability Still A Concern

2/18/2021

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February 2021 editorial comment and update: This article first appeared in the October 2010 issue of PILOT Magazine. All the case examples noted in John Yodice’s article involved circumstances where either the CFI was present in the airplane or was actively participating in an on-going course of instruction. What about a situation where a pilot had received past flight training from a flight school and purported deficiencies in training are claimed to have contributed to an accident? It’s often more difficult for a plaintiff to succeed in such an instance because most states simply refuse to recognize a cause of action based on the so-called educational malpractice doctrine.

This doctrine basically holds that courts should not be asked to measure the standard of care (see John Yodice’s reference to “due care” in his article) afforded to students by educational institutions and teachers. Courts have traditionally left quality of education determinations to the domain of public policymakers. In aviation, this bar has stymied many negligence-based plaintiff’s actions against flight schools, but certainly not all of them. There are several exceptions including a 2013 case where the U.S. District court in Florida ruled that a negligence claim against a simulator-based training provider was not barred due to the educational malpractice doctrine. The court found that “The public policy considerations that are relied upon to bar traditional educational malpractice claims do not carry over to the flight training setting, at least not on the facts of this case.” This case involved TBM 700 crash which allegedly occurred due to a loss of control consistent with “torque roll” during a missed approach. The training provider had trained the accident pilot and the plaintiffs alleged that they failed in their “…duty to warn and train regarding a known lethal propensity of an aircraft.” The court further noted “…application of the educational bar in cases such as this amounts to a categorical grant of immunity to all entities engaged in instruction in the operation of dangerous equipment.” There are other cases where the courts made a distinction between specialized aircraft training and the more traditional educational settings and rejected the bar on educational malpractice, but based on our recent review of cases, such decisions remain the exception, rather than the rule.

The legal liability of flight instructors is a legitimate concern that is continually raised. The question comes up because flight instructors are generally aware that they could be sued, not only for something that happens during the flight instruction period, but also something that happens afterward--something that somebody could say was caused by faulty flight instruction given earlier. The good news is that, so far, the threat to the individual flight instructor has been just that—a threat. In general, the actual liability imposed on individual flight instructors has not been significant.

As any flight instructor will be quick to tell you, it is not the most financially rewarding profession in the world. While we have in this country a tort system that many believe is out of control, the plaintiff lawyers who handle death and personal injury cases only go after the "deep pockets." They typically handle these cases on a contingent-fee basis--if there is no recovery, the lawyer gets no fee; if there is a recovery, the lawyer gets a percentage as a fee. The lawyers are not about to take cases in which there is not a promising prospect that they will be well paid for their time and trouble.

Individual flight instructors historically have not had "deep pockets." As a result, there have not been many suits against individual flight instructors. Sure, there have been suits against flight schools and fixed-base operators based on the alleged negligence of their flight instructors. In these cases, the flight instructor's negligence is imputed to the employer who ordinarily has liability insurance. The insurance companies defend these suits and pay any judgments and settlements, typically without any contribution by the flight instructor.

There have not been many reported court decisions, and the ones there are involve suits against FBOs and flight schools. It is easy to draw from these cases, as well as the general law, that a flight instructor has potential liability--and a legitimate concern.

This area of the law falls under the classification of "torts," which is mostly governed by the law of each individual State. A tort is a civil (as opposed to criminal) wrong other than a breach of contract. It is a wrong for which the court will provide a remedy in the form of an action for damages. The tort usually involved in the flight instruction situation is "negligence." There are other torts. For example, negligence is distinct from intentional torts (punching somebody in the nose) and from torts for which strict liability is imposed (for example, the product liability of a manufacturer).

Under the law of negligence, the law imposes on each person a duty to exercise "due care" to protect others from unreasonable risk. In the flight instruction situation, an instructor owes this duty of care to his student and others. If the instructor fails to exercise due care, the instructor is negligent, and is liable if the negligence causes damage. An instructor's FBO or flight school can be, and usually is, held liable for the instructor's negligence. There are sometimes defenses, such as the contributory or comparative negligence of the person damaged.

In one case, an instructor and his FBO were held to be negligent when a pre-solo student fell into a propeller while alighting from the training airplane. In another, a flight school was found to be negligent when a student on a solo flight crashed after failing to discover that the rear stick of his airplane was tied back with a seat belt. Another case involved a student and his instructor who were killed in a wake turbulence accident. The instructor and the FBO (and ATC) were found to be negligent because the instructor failed to delay the takeoff to allow the wake turbulence to dissipate. But the flight instructor and his employer are not always found to be negligent. An instructor was found not to be negligent when a student crashed after letting his airspeed get too low on approach. After the instructor tapped the airspeed indicator, the student pushed the stick forward abruptly. The aircraft crashed before the instructor could recover it. The court found that the instructor had not been negligent in failing to issue a verbal warning, or in failing to take control sooner. In another case a flight school was found not to be negligent for the crash of a student on his first solo cross-country flight. The flight school was sued for allegedly sending the student on cross-country when he wasn't ready. The court disagreed, finding that the student had been properly prepared.

Even in these cases where the flight instructor and the FBO/flight school prevailed, you can expect that there were significant defense costs involved, and that the results were not that predictable, especially before a judge or jury unfamiliar with general aviation. [Aircraft insurers offer] insurance coverage at reasonable premiums specifically for the flight instructor. Some might question the adequacy of the liability limits available at affordable prices, but some is better than none, and they all typically provide for the cost of defense--which could be considerable.

Copyright © Yodice Associates 2010. 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

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Pilot-Counsel: Your Insurance and Logged Flight Time

1/21/2021

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January 2021 editorial comment and update: This article first appeared in the February 2005 AOPA PILOT magazine. We recently reviewed an insurance policy issued in 2020 for light single-engine aircraft. Interestingly, it was issued by the same insurance company involved in the denial of coverage case referenced in John Yodice’s article. And yes, the policy still refers to “logged” minimum hours and therefore, the potential for an insurance claim denial for not logging the minimum hours required still exists, at least in the context of an insurance claim with this particular insurer.

What happens if you’ve lost your logbooks or flight records? Is there a method to reconstruct them? The answer is yes, but be forewarned; we don’t know if a reconstruction will satisfy an insurer in a situation similar to the one referenced. We do know, however, that the FAA offers guidance for reconstructing pilot logbooks or flight records which may be used to satisfy the recordkeeping requirements of 14 CFR part 61.51. The FAA may accept the use of the following items to substantiate flight time and experience for regulatory compliance:

Aircraft logbooks
Receipts for aircraft rentals
Operator records
Copies of airman medical files
Copies of FAA Form 8710-1 applications

The last two bulleted items can be obtained from the FAA. Medical certificate applications and pilot certificate/rating applications are kept by the FAA and both have sections for recording pilot time. And, while it’s not specifically listed in the FAA guidance material, we know from experience that the FAA will accept log entries and training certificates from CFI’s and training facilities to evidence the meeting of the recent flight experience requirements.

The take-away from John Yodice’s article remains that it’s prudent to know and understand the details of your aircraft insurance policy. It’s often not an easy task, as most policies contain a myriad of provisions and endorsements, limitations and exclusions that are not easily understood.

“One of the worst disasters that can befall an aircraft owner is to be involved in a serious aircraft accident. No argument. Secondary to that disaster is to have the insurance company that insures the aircraft deny coverage for the accident.” This is a quote from my column of a year ago (see “Pilot Counsel: Insurance and Airworthiness,” February 2004 Pilot.

Sad to say this has been a recurring and necessary theme in this column over the years. For example, problems with “airworthiness” (February 2004), “approved pilots” (April 2002), “proper licensing” (February 1999), and more, all offer guidance on how to avoid these secondary “denial-of-coverage” disasters. These columns are based on actual cases. They illustrate traps for all of us. This month’s column delivers the same message in a slightly different context. The message of the case we are reporting here is that there is a crucial legal difference between actual flight time and what we may claim as “logged” flight time. This difference could cause a denial of insurance coverage after a loss and when it is too late to do anything about it.

This “denial-of-coverage” disaster comes out of a court decision involving the crash of a Cessna 414 twin-engine aircraft. It killed the pilot and his two passengers. No other details of the crash are given in the accident report.

As you have already surmised, there was a dispute about whether the liability and damage insurance policy on the aircraft was effective at the time of the crash. The insurance company denied coverage for the losses associated with the crash because, the company said, the pilot had not “logged” the minimum flight hours required for coverage under the policy. The denial led the aircraft owners to sue the insurance company for breach of contract and for insurance bad faith. The insurance company counterclaimed asking the court to declare that there was no coverage for the crash.

The policy wording that applied was in a pretty standard format [check your own policy]. In addition to coverage for the “named” pilot owner, it provided coverage for a pilot with:

a current commercial certificate, with a multiengine and instrument ratings.
a minimum of 3,000 logged pilot hours.
at least 1,500 hours logged in multiengine aircraft.
100 hours logged in the same make and model aircraft covered.

There is no doubt that the pilot who was operating the aircraft when it crashed was a well-experienced (more than 15 years) commercial pilot and flight instructor with airplane single and multi-engine and instrument ratings. The problem was that, after his death, only a single logbook could be found among the pilot’s effects. The logbook could document only 236 pilot hours, all of which, according to the logbook, had been flown in single engine aircraft within approximately a two-month period earlier that same year. Obviously, the pilot had logged more hours, otherwise how did he get a commercial certificate and the additional instrument and multiengine ratings? Even the insurance company conceded that the pilot had flown more than was reflected in the logbook. Where there missing logbooks? Did the pilot fail to record his other time?

Whatever the possible explanations, the issue came down to the meaning of the term “logged” as used in the policy. The policy does not define the term. Given the situation, the aircraft owner predictably argued that the term should be interpreted to mean hours actually flown but not necessarily recorded. After all, the actual time is what the insurance company should be interested in. The owner was adamant that the pilot had told him, and he believed, that the pilot had logged well over 1,500 hours of multiengine flight time, and over 50 hours in a Cessna 414, “and, indeed, much more than that.” As such, the amount of flight time the pilot actually had was a question of fact that the owners wanted the opportunity to prove in a trial. Not a bad argument considering that all flight time is not required to be recorded, and many pilots don’t record all of their flight time.

FAR 61.51, the regulation that deals with “pilot logbooks,” provides that the only flight time that a pilot must log is the training and aeronautical experience used to meet the requirements for a certificate, rating, or flight review--and the aeronautical experience required for meeting the recent flight experience requirements. That’s all.

The owners’ argument failed, both before the trial court that granted summary judgment to the insurance company (i.e., no trial), and on appeal. The courts’ decisions rested on the interpretation of the term logged in the policy. Both courts concluded that the term means “hours actually flown and reliably recorded in a flight time log.” If no reliable record could be produced, the insurance company wins, no need for a trial.

In reaching this interpretation the appellate court noted that the obvious intent of the insurance company was to limit its liability for losses associated with inexperienced pilots. It is not unreasonable for an insurance company to require a record, said the court. “Human memory is so frail that a record needs to be made of the time, duration, point of departure, and destination of flights during which the [minimum] hours are accumulated. It is the record that gives reliability to the required time.”

The appellate court’s interpretation also rested on what the court said was the accepted meaning of the term “logged” within the aviation industry.

So, a “disastrous” result to seemingly innocent aircraft owners. When many of us, each year, are called upon to complete an application for aircraft insurance, note particularly that the application typically asks for “logged” pilot time, a term easily missed or misunderstood. That term should have special significance to us in light of this case. It’s also worth noting that if you are an aircraft owner who allows other pilots to fly your aircraft, visually check the pilot’s logbook to ensure that he or she has logged the flight time that will satisfy your insurance policy’s requirements. You may even consider making copies of the pertinent logbook pages for your records.

Copyright © Yodice Associates 2005. 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

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PILOT-COUNSEL: Pilots And Privacy

12/11/2020

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December 2020 editorial comment and update: This article first appeared in the January 2006 AOPA PILOT magazine. Since that time, a form of “insidious encroachment” has continued. In 2009, as a direct result of the industry outlash the FAA received following the Social Security Administration and FAA matching scheme noted in the article and at least one airman’s litigation, the FAA changed the Privacy Act Statement contained in the FAA Form 8500-8 Application For Airman Medical Certificate. The application now includes the following additional statement as to how the records may be used: “(f) to disclose information to other Federal agencies for verification of the accuracy or completeness of the information;”. In effect, the FAA amended the Privacy Act Statement to provide cover for its future matching activities. Matching activities, which in 2018, culminated in the U.S. District Court in San Francisco indicting four airline pilots for making false statements to the FAA in connection with their answers to medical application question 18y.—they evidently did not report the VA (Veteran’s Affairs) disability benefits that they were receiving. It could be argued that enforcing compliance by these means is “beneficent” if those targeted are a hazard to aviation, for instance, if an airman doesn’t report a dire medical condition; maybe, so long as no innocents suffer in the process. Innocents, of course were paramount concern to Sir William Blackstone in his (1765) quote, “Better that ten guilty persons escape than that one innocent suffer.”

Flight tracking and ADS-B technology have also created privacy issue for pilots. Although there are certain measures available to restrict the availability of identifying details, they are not all full proof. The recently launched FAA Limiting Aircraft Data Display Program (LADD) can be employed to block public access to flight data, but it doesn’t block access from private ADS-B receivers, for instance. FAA Private ICAO Address Program (PIA) is another new program that provides an alternate, temporary ICAO address not tied to the owner in the Civil Aviation Registry. Providing more program detail and assessing the effectiveness of these programs is beyond the scope of this editorial update. Suffice it to say, if you’re concerned about someone knowing who you are and where you’re going while in flight, there are multiple resources, including FAA.gov, to explore and learn more about the program options available.

United States Supreme Court Justice Brandeis, writing in 1928, even before the FAA was born, gave us this farsighted warning:

"Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

The “insidious encroachment” for beneficent purposes that is now dawning on me is the computer matching of the FAA airman records with the computer records of other federal and state agencies, which should not be happening, and the potential misuse of social security numbers that airmen are voluntarily giving to the FAA.

The best expression of my growing concern are the findings made by Congress when it enacted the Privacy Act, as these findings are set out in a leading Administrative Law treatise on the subject. Congress found that “(1) individual privacy is directly affected by the collection, use and maintenance of information by the Federal Government; (2) increasing use of computers and other modern forms of information storage and retrieval greatly increases the probability of harm to the individual’s right of privacy; (3) misuse of such information systems can affect the individual in every facet of life; (4) the right to privacy is guaranteed by the Constitution of the United States; and (5) in order to protect this right, legislation is needed to regulate systems of records maintained by Federal agencies.”

Before getting to current events, I must observe that the “encroachments” of pilots’ privacy have been “insidious,” just as Justice Brandeis warned. Here is one that has been irritating me for a long time. It is so “insidious” that most airmen no longer notice it. In 1991 the FAA changed the medical application form to include an “express consent” provision to access an airman’s motor vehicle driving record. FAA did so in order to avoid the privacy restrictions of the National Driver Registration Act as well as the Privacy Act. Without an airman’s express consent (it must be signed), the FAA and the National Driver Register would be unable to run a computer match, as they do, on every FAA medical certificate applicant against the National Driver Registry and the States’ driving records. Of course, the “consent” is a fiction. It is not at all voluntary. If an airman does not consent (sign the application), the airman does not get a medical certificate. Period. What is the beneficent purpose? The FAA uses the match information to determine if an airman has falsified his or her driving record on the medical application, or if there are enough driving infractions to suspend

or revoke the airman’s FAA certificates. Query: Is that worth the violation of the spirit if not the actual wording of the Privacy Act? Do you notice anymore? Is that “insidious?”

Here is a more current example. Beginning in July of 2003, the Department of Transportation (that includes the FAA) and the Social Security Administration initiated a joint effort to identify the misuse of Social Security numbers by pilots. Somehow that effort got derailed into a record matching that identified a number of pilots with current medical certificates who were receiving Social Security disability benefits (an obvious “beneficent purpose”). They then narrowed their review to the 40,000 pilots residing in the northern half of California (that’s probably all if not most of them), identified 3,220 who were collecting benefits (some disability benefits), and then selected the 45 worst cases for criminal prosecution. In 14 cases the FAA issued emergency orders immediately revoking their pilots licenses and medical certificates. As best as we can tell, the 40,000 pilots (overwhelmingly innocent and law abiding) were not notified that their FAA records were being computer matched against Social Security computer records.

That may not be the end of it. The DOT Inspector General has indicated, “As the results of this initiative involve only a portion of certificated pilots in California, it is important that FAA take steps to proactively identify and address similar falsifications occurring elsewhere across the greater community of certificated pilots. We recommend that FAA, working with SSA and the other disability benefit providers, expedite development and implementation of a strategy to carry out these checks and take appropriate certificate enforcement action where falsification is found. We would be pleased to assist FAA in exploring options for accomplishing this, to include database matching with record systems of the disability providers.”

So, we may see more computer matching of our information on the FAA databases with other government databases. Where will it end? As the scope widens, the “beneficent” purposes likely will narrow and become more arguable. Our privacy is being chipped away by inches, insidiously.

I must be clear that what I am talking about is only government computer matching, to which the Privacy Act is directed. Names, addresses, and certification of pilots on the FAA list are public information (unless a pilot opts out). Any member of the public is entitled to this public information and many use it for computer-matching purposes. That is a separate matter.

It occurs to me that we pilots, in a spirit of cooperation, are unwittingly giving the FAA more ammunition than it is entitled to, to facilitate any future such efforts that may have more arguable “beneficent” purposes. An individual’s social security number is the ideal identifier for computer matching. The Privacy Act Statement on the Application For Airman Medical Certificate, required by the Privacy Act, tells us “Submission of your SSN is not required by law and is voluntary. Refusal to furnish your SSN will not result in the denial of any right, benefit, or privilege provided by law.” Why do most pilots voluntarily give their social security number? Why are we doing it? Probably because this trend has been so insidious, though many may be conscientiously doing it with full knowledge of what they are doing. I respect that. I, for one, am writing to the Secretary of the Department of Transportation, ultimately in charge of the records, asking him to remove my social security number from my FAA records. And, I won’t be furnishing it in any future applications to the FAA. This dangerous trend to the invasion of pilots’ privacy rights bears watching. If the FAA has lost control, it shouldn’t be the keeper of important information that other agencies have a mandate to keep private.

One last word--while the FAA appears to be the culprit, reading between the lines, I get the feeling that the FAA is being forced into it, as it has been forced to front for the airspace and airport restrictions imposed on pilots since the September 11, 2001, terrorist bombings.

Copyright © Yodice Associates 2005. 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

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PILOT-COUNCEL: Private Vs. Commercial Flying

12/10/2020

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December 2020 editorial comment and update: This article first appeared in the December 1999 AOPA PILOT magazine. It emphasizes the importance of knowing and understanding the privileges and limitations of private pilot privileges. The issues and pitfalls raised in the 1999 column persist today. Newly minted pilots as well as veteran flyers sometimes stumble across the line between commercial and non-commercial activities due to confusion or ignorance of the rules. FAR 61.113 and its predecessor FAR 61.118 are directed at pilots, but they were promulgated in part for the protection of passengers and the unknowing public who are entitled to the higher standard of care imposed on commercial operations than that required of under private pilot rules. Private pilots are expected to know what they can and cannot do with regard to carrying passengers or cargo for compensation or hire, as distinguished from what commercial carriers can do.

Since publication of this article in 1999, technological advances and the advent of internet-based flight-sharing applications and platforms have caused newfound confusion and strain for private pilots and other stakeholders. The FAA’s position on the matter though is pretty clear; it considers web-based applications or platforms that connect pilots, passengers and airplanes together to facilitate air transportation to be commercial operations that require pilots hold commercial pilot or ATP certificates and fly under Part 119 commercial operating certificates. Note that traditional expense-sharing flights under FAR 61.113(c) where the private pilot PIC is reimbursed the pro rata share of expenses remain permissible.

Suppose a friend calls on Labor Day weekend to tell you that an air ambulance aircraft, along with its pilot, nurse, and doctor are stranded because of a mechanical problem, and they need somebody to fly a mechanic to the aircraft to get it operational. He tells you that they have tried to get a charter but they have been unable to do so. He asks if you would help. It’s a good cause, and you would like do it. May you fly your own airplane to take a mechanic out, and bring the crew back, legally, according to the Federal Aviation Regulations?

Decisions of the National Transportation Safety Board in pilot enforcement cases teach us a lot about the interpretation and enforcement of the FAA’s regulations. Here is a case that helps refresh our understanding about what flights we can conduct as private operations, and at what point a flight could be considered commercial. The case also illustrates the importance of our right to appeal FAA enforcement cases to the NTSB, to bring some common sense and fairness to FAA actions.

FAR 61.113 is the regulation that specifies the privileges of the holder of a private pilot certificate. It also applies to ATP and commercial pilots when they are exercising only the private privileges of their certificates.

According to the regulation, a private pilot may act as pilot in command of an aircraft, including carrying passengers onboard the aircraft. But, there are two very important limitations to these privileges, both of which involve the legal phrase in the regulation, ”compensation or hire.” A private pilot may not receive "compensation or hire" for acting as pilot in command of an aircraft. And, a private pilot may not command an aircraft that is carrying passengers for "compensation or hire", even if the pilot does not receive any compensation.

The regulation has exceptions to the "compensation or hire" limitation which we have explained in earlier columns (see “Interpreting the Rules,” October 1997

Pilot; Charitable Flights,” March 1996 Pilot; and “Shared Expenses,” March 1995 Pilot), such as shared-expense flights, flights incidental to a business or employment, charitable airlifts, sales demonstration flights, and glider towing. None of these exceptions are involved in this case.

The respondent in this case, an automobile service station operator, is a private pilot and aircraft owner. He received a call from a friend who had received a call from the manager of an air medical transportation service. The service operates two helicopters as air ambulances. The manager learned late on a Friday afternoon before a Labor Day weekend that one of the helicopters, which was on a mission involving a nurse, a patient, a doctor, and a pilot, had a mechanical problem and was grounded on a nearby island. The manager made a couple of calls to commercial operators to try to arrange air transportation for his mechanic to the island to get the helicopter flying again. He anticipated that the flight physician and nurse would also need transportation back, but they returned by other means. Because it was a holiday weekend, he had difficulty finding anyone available.

Eventually he called a longtime acquaintance who he thought was a commercial operator (he actually was no longer a commercial operator). The acquaintance indicated that he was not available to take the flight himself, but he would try to get someone to do it. The manager ended up talking to the respondent. The respondent stated that he advised the manager in their initial telephone conversation that, although he did not do charter flights, he would take the flight. "He had asked how much it would be, and I said I wouldn't take any money." He agreed to help as a favor, not only to get an air ambulance back operating, but because, "if it ever happened to me, I'd want somebody to help me." An NTSB judge would later characterize him as a "good Samaritan", and his help as a "good deed."

So, that day, the respondent, in his own Piper Lance, flew the mechanic to the island and came back with the pilot. The next morning, Saturday, he took the mechanic and the manager to the island to complete the repairs on the helicopter. Three flights were made in all.

Here is where the situation gets sticky. The manager received an invoice for $300 from the longtime acquaintance, and he paid it. But, the respondent never received any compensation for the flights--not even for the fuel. Nor did the respondent expect to get paid or otherwise compensated.

Even though the respondent, himself, did not get compensated, and did not expect any compensation, the FAA contended that he carried passengers for "compensation or hire."

To demonstrate how strongly the FAA felt about it, the agency threw the book at the respondent. The FAA suspended his private pilot certificate for one year. The FAA not only charged him with violation of FAR 61.118 (now 61.113), but also a string of Part 135 violations (the Part governing commercial charter operators), and with careless or reckless operation in violation of FAR 91.13(a).

The respondent appealed his case to the NTSB. There he found more understanding of his situation. The Board granted the respondent's appeal and dismissed the FAA complaint.

The case before the Board seemed to turn on whether the respondent "should have known" that the flights were commercial. The Board distinguished an earlier similar case decided by Board, in which the pilot claimed that he was giving the other pilot flight instruction and had no knowledge of any arrangement with the passengers. He failed to ask any questions about why the passengers were on the flight. In that case, the Board concluded that the pilot knew or should have known that the flight was subject to Part 135. The pilot was found in violation.

"The evidence in the instant case, on the other hand, does not support a similar finding. [The] respondent agreed to transport, in his own aircraft, [the ambulance service's] mechanic in order to help the air ambulance service regain the use of one of its two helicopters during a busy holiday weekend. He testified, and the law judge found, that he advised [the manager of the ambulance operation] the flight would not be a charter and there would be no charge. He did not allow [the manager] to pay for fuel, and the evidence did not show that he was ever reimbursed by anyone for the fuel he utilized,”. “Further, no evidence was introduced to show that respondent expected any return favor from or sought to build goodwill with [the manager], and there is no evidence to indicate that respondent worked in any way for or with [the former commercial operator]. There is also no evidence to indicate that respondent knew or should have known that [the former commercial operator] planned to charge [the manager] for the flights. In short, the evidence is insufficient to prove that the flights were operated for compensation or hire."

This case has several messages for us. It reminds us of the dual limitation on the privileges of a private pilot. Not only must a private pilot not receive compensation, the pilot may not carry passengers or property for "compensation or hire" even though the pilot is not being paid. If there is any payment or compensation for the carriage, a private pilot may not command the flight. Similarly, although an ATP or commercial pilot may be compensated for serving as pilot in command of an aircraft carrying passengers or property for compensation or hire, he or she must do so under the requirements of FAR Part 135. Even if the pilot in this case had an ATP or commercial certificate, he no doubt would have had the same problem with the FAA.

This case also cautions us to be on our guard to question circumstances that suggest passengers or property may be carried on a flight for "compensation or hire." Even if we don't actually know the status of our passengers or cargo, we are responsible if we "should have known."

Finally, this case teaches us how seriously the FAA considers such violations. A one-year suspension of a pilot certificate is pretty serious stuff.

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

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PILOT-COUNSEL: Watch That Altitude!

12/4/2020

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November 2020 editorial comment and update: This article first appeared in the October 2009 AOPA PILOT magazine. Neither FAR 91.123(b) nor FAR 91.13(a) has changed since this article’s publication 11 years ago. What has changed is the Compliance and Enforcement Program noted at the end of the article. In concept and in spirit, the Compliance Philosophy adopted in 2015 and renamed in 2018 as the Compliance Program is a restatement of sorts of the “kinder and gentler” FAA enforcement policy that predated the 2007 amendment noted in the article. In its present form, the Compliance Program seeks to differentiate regulatory non-compliance due to flawed procedures, simple mistakes, lack of understanding, or diminished skills from non-compliance due to intentional or reckless conduct. The agency desires to utilize root cause analysis, training and education to correct non-compliance, rather than legal enforcement, where appropriate.

We’re then left to wonder; would the FAA pursue a different course of action against the C210 pilot if the deviation occurred today under the same factual circumstances as before? It’s difficult to say. The fact that the C210 pilot had been previously cited for a similar violation might tip the scale towards enforcement, but repeated non-compliance itself does not preclude the use of Compliance Action. FAA personnel have discretion and factors such as a pilot’s compliance disposition and cooperation could help to balance the scales.

A 160-day suspension of a pilot's license for being 500 to 600 feet off his ATC assigned altitude? Pretty serious stuff. Yet that is exactly what happened in a recent case that prompts us to remind pilots of the possible consequences of an altitude deviation. The case provides some important insights for pilots, illustrating under what circumstances the FAA will investigate and prosecute, and how.

In this case the pilot was operating his Cessna Turbo 210 on an IFR flight from Kansas City to Aspen, Colorado. The weather was stormy and turbulent over the mountains. While the flight was west of Denver at flight level 170, air traffic control instructed the flight to "climb and maintain" FL 180. The flight did climb to the assigned altitude, but then descended down to about 17,500 feet. The pilot thought that he had been granted a block altitude clearance to contend with the weather. ATC disagreed. Unfortunately, that descent caused a loss of standard separation with another aircraft (usually 1,000 vertical, or 3 or 5 miles horizontal). This deviation and the consequent loss of separation caused the FAA to suspend the pilot's license for 180 days, charging him with violation of FAR 91.123(b) and FAR 91.13(a).

FAR 91.123(b) provides that "except in an emergency, no person may operate an aircraft contrary to an ATC instruction in an area in which air traffic control is exercised." FAR 91.13(a), which the FAA automatically charges in every operational violation case regardless of the facts, prohibits careless or reckless operation so as to endanger the life or property of another.

The circumstance in this case that almost always guarantees FAA prosecution is the loss of standard separation. This case illustrates what happens when the ATC computers detect such a

a loss. A "conflict alert" alarm goes off in the FAA ATC facility. Once the air traffic situation is resolved (happily virtually all are), then the "quality assurance" folks in the facility conduct an investigation. The investigation includes reviewing the computerized radar data that shows the tracks and altitudes of the flights involved, as well as the tapes of the relevant ATC communications that can be integrated with the radar data. If the loss of separation is confirmed and there was no emergency or other acceptable explanation, the matter is referred for prosecution.

This case also involved another circumstance that prompts an enhanced penalty -- a prior violation. The pilot had a 5-year-old prior violation in which he deviated from an ATC instruction under similar circumstances. After that violation, the pilot underwent extensive remedial training to regain his certificates.

In this case the pilot appealed the suspension to the National Transportation Safety Board, as he was entitled to do. After a hearing, an NTSB judge reduced the period of suspension from 180 to 160 days. In the appeal the pilot explained that he was experiencing turbulence and bad weather. He had two of his grandsons in the aircraft, and that one of them had motion sickness as a result of the turbulence. All the while, he was seeking deviation to avoid the weather. He believed that ATC had granted his request for block altitude clearance. He said that when he was in the Denver Approach area, he received an altitude of 17,000 feet after he requested it, and that, once he left Denver Approach and was handed off to Denver Center, he was already on the block clearance. He tried to contact Denver Center several times and made a request for a deviation left and right, and up and down for 1,000 feet, but that he received no response. In fact, the Center did not hear all of the calls. Another aircraft relayed the message for him, and he was given a right heading. He went to his assigned heading, maintaining FL 180, and he heard, "deviation approved." Based on this, he believed that ATC had granted his request for block clearance. While he was at FL 180, he encountered more turbulence and bad weather. He turned around to help his grandson who had vomited. His other grandson told the pilot "you are down," and pointed to the altitude. He told his grandson that his altitude was permissible because he was on a block clearance.

The controllers disputed that a block clearance had been granted. The tapes indicated that communications were difficult, and involved relayed transmissions. The law judge determined that ATC never received the request for a deviation. The law judge was critical of the pilot's failure to use his aircraft call sign and repeat back the ATC instruction, instead saying "thank you" several times. These contributed to the communications problems. In the end, the NTSB rejected the pilot's appeal.

In deciding this case, the NTSB made this unfortunate statement: "We further note that respondent's [the pilot's] admitted act of turning around to assist his sick grandson while encountering turbulence amounts to a violation of FAR 91.13(a)."

Because the computerized ATC radar data was for air traffic control purposes and not for enforcement of the regulations, there had been an FAA Compliance/Enforcement Bulletin allowing merely an administrative action (a warning notice but no certificate suspension) in the case of a computer detected altitude deviation of 500 feet or less, where no near midair collision resulted or there were no other aggravating circumstances. In 2007, when the FAA issued its amended Compliance and Enforcement Program, it cancelled its earlier Program that technically cancelled this Bulletin. FAA may still be informally honoring this policy. We hope so. But even so, historically the FAA has not applied the policy where there was a loss of standard separation.

Copyright © Yodice Associates 2009. 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

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PILOT-COUNSEL: Buyer Beware

12/3/2020

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October 2020 editorial comment and update: This article first appeared in the March 2001 AOPA PILOT magazine. The matter of identifying potential post-closing obligations remain very much a concern for aircraft buyers and sellers, particularly, when pre-owned aircraft are involved. Most of the aircraft purchase agreements we see these days have fairly straightforward provisions disclaiming warranties, express or implied, as to condition and fitness for a particular purpose. That said, the devil is in the detail, or lack thereof. It’s important to know and understand what a contract provision says and/or what it doesn’t say. And, despite the existence of well-crafted provisions contained in a particular contract, as John Yodice’s article points out, “…imaginative lawyers may attempt to find ways around them.”

As to the case referenced in the article, in 2004 the court ruled that the inspection facility was negligent due to misrepresentations made by its mechanic and the plaintiff-buyer was awarded approximately $1,900,000 in damages. Interestingly, the court also ruled that the buyer’s agent, who originally helped them locate the Hawker and was involved with assessing the inspection facility’s findings, was attributed comparative fault due to its own negligence. The jury allocated 80% of the comparative fault to the inspection facility and 20% to the buyer’s purchasing agent. Even more interesting, since the purchasing agent was found to be a bona fide agent of the buyer and not a non-party, the 20% amount attributable was the responsibility of the plaintiff-buyer, thus reducing the damages by that amount. You read that right. The buyer lost a portion of the damages because of its agent’s negligence.

And what about the original Hawker jet seller? As John Yodice’s article relates, the seller sought dismissal of the plaintiff-buyer’s breach of warranty claim. The district court denied the motion pending either a stay or termination of the seller’s Chapter 11 bankruptcy proceeding. As far as we know, no further action was ever taken by the court.

Anyone who has been involved in the buying or selling of a used aircraft has probably wrestled with this nagging legal problem: Who is responsible for defects discovered in the aircraft after it has been sold?

There are some standard techniques that we have developed over the years to try to accommodate this problem. They are usually very helpful, and they work most of the time, but, as we will see, imaginative lawyers may attempt to find ways around them.

There are two perspectives to consider in this problem: the buyer’s and the seller’s. The buyer wants to be sure that he is getting the used aircraft in as good condition as the buyer believes it to be. One of the traditional ways a buyer tries to achieve this expectation is through a warranty, essentially a promise, from the seller about the condition of the aircraft. For example, a seller could warrant that the aircraft is in airworthy condition. If the aircraft later proves to have defects making it un-airworthy, defects that existed at the time of sale, the buyer has a legal right to go against the seller for breach of this warranty.

But the seller, especially a seller of a used aircraft who is not an aircraft dealer, wants the sale to be final. The seller does not want to be faced with later claims by the buyer about defects in the aircraft. The seller’s typical technique is to sell the aircraft “as is” without any warranties as to the condition of the aircraft.

If a buyer is willing to go forward on an “as is” basis, then the buyer is well advised to arrange for a pre-purchase inspection by a licensed mechanic or repair station. One, preferably, independent of the seller. The pre-purchase inspection should include not only the aircraft itself, but also the logbooks, and if possible the maintenance records. A variation on this technique is to get a fresh annual inspection prior to the sale. A fresh annual gives the buyer a current certification by a qualified third party that the aircraft is in airworthy condition. This is a good practice, highly recommended, but even an annual inspection doesn’t always pick up defects that later come to light.

So, we say from long experience that even with a prepurchase inspection (and even a fresh annual)

and a sale “as is,” these techniques don’t always stop legal claims about defects that are discovered by the buyer after the sale.

Here is a legal decision that illustrates the kind of claims that can be made. It is worth noting because there are not a lot of reported legal decisions dealing with this situation. That’s mainly because these cases are expensive to litigate when compared to the costs of repairs, and so they are usually settled. This case involved a multi-million-dollar aircraft, which probably accounts for the fact that we have the benefit of a legal decision that must have cost the parties a lot of money to litigate.

The case involved the sale and resale of a 1969 Hawker Siddeley jet airplane. The first seller had owned it for more than 27 years. Then the owner sold it “as is, where is” to a commercial airplane refurbisher. The refurbisher, perhaps after some spiffing-up, then sold it to our plaintiff-buyer, again “as is, where is.” (The buyer became the plaintiff in the lawsuit we are reporting, so we’ll call it the “plaintiff-buyer” to distinguish it from the refurbisher-buyer-then seller.) It sold for $2.2 million dollars. Because the sale was “as is,” the plaintiff-buyer had a pre-purchase inspection done on the aircraft, and, based on the inspection, bought it.

Guess what? More than a year after buying the Hawker, the plaintiff-buyer discovered corrosion on various parts. It came to light when the plaintiff-buyer hired an aircraft repair and maintenance company to do an inspection of the plane. The corrosion was extensive enough to render the airplane un-airworthy, and very expensive to repair.

The plaintiff-buyer wanted satisfaction from someone and ultimately sued the first seller as well as the company that did the pre-purchase inspection. For some reason not explained in the court decision, the plaintiff-buyer did not sue the refurbisher from whom he bought the plane. And, the decision does not tell us what happened to the part of the suit against the pre-purchase inspector. But the decision goes into some detail about the claims against the first seller, and gives us some interesting insights into the law that was applied.

The plaintiff-buyer, who paid $2.2 million for the plane, claimed as damages in the lawsuit $2,450,000 in losses, consisting of the costs for repairing the corrosion, lost leasing profits, and the subsequent sale of the diminished-value Hawker for $950,000.

The plaintiff-buyer alleged three causes of action against the first seller. The first two were in tort (as distinguished from contract, since there was no contract of sale between the first seller and the plaintiff-buyer). The torts were fraudulent misrepresentation and negligent misrepresentation. The third cause of action was for breach of express warranty.

All three of these causes of action relate to a very familiar and recommended technique – the review of the aircraft’s logbooks prior to purchase. The Hawker’s logbooks indicated that the aircraft had undergone a 600-hour and a 48-month radiographic (x-ray) inspection. The results of the inspection were recorded in the Hawker’s logbooks. The logbook entry noted no problems and stated that the Hawker was “approved for return to service.” In fact, the results of the x-rays revealed 22 points of corrosion. The logbook entries, however, do not indicate that the first seller discovered or repaired the corrosion.

Based on the logbook entries and the x-rays, the plaintiff-buyer alleged that the corrosion existed when the first seller owned the Hawker, and the first seller either had actually discovered or should have discovered the corrosion.

In these misrepresentation (tort) claims, the plaintiff-buyer alleged that the first seller misrepresented the Hawker’s condition when the first seller’s mechanics failed to record the corrosion in the airplane’s logbook. The plaintiff-buyer claimed that it relied on these misrepresentations in the logbook before deciding to purchase the Hawker from the refurbisher. In the breach of warranty (contract) claim, the plaintiff-buyer claimed that the logbook entries constituted express warranties of the Hawker’s condition and airworthiness.

The first seller filed motions to dismiss the plaintiff-buyer’s claims. As a procedural matter, in ruling on a motion to dismiss, the court accepts as true the well-pled allegations of the complaint. Even considering the allegations as true at this stage in the proceedings, the court, in a written decision, dismissed the fraudulent misrepresentation and negligent misrepresentation claims. The court asked for further briefing on the breach-of-express-warranty claim.

In dismissing the misrepresentation claims, the court applied the Michigan economic loss doctrine. Under that doctrine there is no cause of action in tort for fraudulent or negligent misrepresentation in connection the sale of an allegedly defective good where the only loss suffered is economic (as opposed to “unanticipated physical injury”). Rather, “where a purchaser’s expectations in a sale are frustrated … his remedy is said to be in contract alone, for he has suffered only ‘economic losses.’” Of course, in this case, there was no contract between the first seller and the plaintiff-buyer, and the losses were economic.

Many of you may remember that I previously reported two cases indicating that the display of aircraft logbooks by a seller to a buyer can constitute an express warranty in contract that the entries are accurate (see “Washington Counsel: Warranties—Expressed and Implied,” June 1981 Pilot). Since there was no contract in this case, the plaintiff-buyer presented a different question. That is, do logbooks in and of themselves create a duty that may be the basis of a lawsuit in tort by a purchaser who relied on them? The court had something to say on this interesting question. The plaintiff-buyer sought to avoid the application of the economic-loss doctrine by arguing that the former owner had an “extra-contractual” obligation to make accurate and complete disclosures in the Hawker’s logbook. This was an attempt to create a duty based on federal aviation regulation that requires accurate logbooks. The court held that the Federal Aviation Act does not provide for a private right of action for violations of the act or regulation promulgated under the act.

On the breach of warranty claim, the first buyer sought dismissal on the basis there was no contract between the parties, and furthermore that there was no legal basis for extending the alleged warranties to remote buyers. The court indicated that it was not ready to address the breach of warranty claim. It raised the issue whether the second buyer’s failure to sue the refurbisher from whom it bought the plane may preclude the court from rendering a judgment on the dispute between the first seller and the plaintiff-buyer. The court considered this a threshold issue to the breach of warranty claim, and wanted more briefing from the parties on this issue.

Two of the three causes of action were dismissed, and the third awaiting further briefing by the attorneys. The current status of the case is that it is now stayed because of an intervening bankruptcy, so we will not soon know the end of the story. Nevertheless, this legal decision gives us some interesting insights into how enterprising lawyers may try to avoid the techniques that have been developed to put some certainty into aircraft sales transactions.


Copyright © Yodice Associates 2001. 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

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PILOT-Counsel: Logging Flight Time

10/29/2020

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January 2019 editorial comment and update: This article first appeared in the January 2001 AOPA PILOT magazine. It addresses how incorrect logging of flight time can lead to an FAA claim of falsification. The cited falsification regulation, FAR 61.59, is still very much in effect and falsification remains a troublesome issue today, although it’s more frequently linked to a mistake or misstatement on an application for an FAA medical certificate than to pilot logbook entries.

Let’s pivot to another issue touched on in John Yodice’s article relating to the logging of second-in-command flight time. FAR 61.51(f) specifies, in short, that SIC time may only be logged by a qualified pilot in an aircraft that requires more than one pilot by type certificate, or when more than one pilot is required by regulation (think safety pilot SIC in this latter instance). It sounds simple enough, but over the years we’ve heard from pilots and operators who have incorrectly believed that pilots can log SIC time when performing flight duties while occupying the co-pilot seat of single pilot aircraft. And some of these pilots have used this flight time in calculating the aeronautical experience hours required for eligibility to obtain an ATP and which has potential falsification implications. I think most of us will agree that right seat time can be valuable experience—it has just never been log-able, that is, until recently.

In 2018 the FAA amended a regulation and issued an Advisory Circular that details a pathway for pilots, under certain conditions, to log SIC flight time during operations that do not require a second pilot (see FAR 135.99 and AC 135-43). It’s called the Second-in-Command Professional Development Program. In essence, this program permits Part 135 charter operators to use qualified pilots to serve as SICs in multiengine or single-engine, turbine-powered airplanes that do not require a second pilot and in turn, the SIC pilots may log the time and use it to meet certain aeronautical experience requirements. This is especially useful to both pilots and operators, as it expands opportunities for logging pilot time and provides increased safety inherent in multi-crew operations.

The charter operator/carrier and the SIC pilot must adhere to the specific requirements prescribed in 135.99.

The logging of flight time can sometimes create real legal problems for pilots. This is especially true, as a recent case tells us, if the FAA believes that a pilot is intentionally padding his or her time to meet some FAA requirement. Pilots are not generally aware that then, a pilot will be facing fraud or intentional falsification charges. According to the FAA, these are serious charges that go to the heart of the pilot’s qualifications. The FAA will always seek the revocation of all of the pilot’s FAA certificates based on fraud or intentional falsification with respect to FAA records or applications. Even unintentional mistakes, which we all make, can create legal problems for pilots in trying to explain them away to a skeptical FAA.

The case that we are reporting involves a hapless pilot who had been planning his entire life for a career in aviation, following his father who is a retired airline pilot. The son was a commercial pilot and flight instructor, supporting himself and his young child (he had custody) by giving flight instruction. At the same time, in order to advance his career, he was working as a part-time pilot for a company that provided both on-demand charter service and aircraft management. The company had four aircraft: two single-engine Beech Bonanzas, a twin-engine Beech Baron, and a twin-engine Beech King Air. The pilot was flying as captain on the Bonanzas. He was also receiving training from the company to upgrade to captain on the Baron. And also at the same time, with the help of the company, he was working on getting his Airline Transport Pilot certificate.

The pilot got paid for all of the flying he did with the company. Not only did he get paid to captain the Bonanzas on revenue flights, the company paid him to fly in the company’s Beech King Air and Beech Baron. On the twins, his job was to observe company operations on Part 135 flights, to prepare him to upgrade. On those trips, he would fly with the person who was the company’s training captain and check airman. He would be a right-seat observer on the Part 135 legs, and he would receive flight instruction on the non-Part 135 legs when there were no passengers. Even on the Part 135 legs, he would help out by operating the radios, helping with the charts, giving passenger briefings, and the like.

How he logged this time is what got him in trouble with the FAA. His practice was to record all the paid time he flew for the company on his kneeboard. He would later periodically record the time in his logbook. He believed he was allowed to log all of the time for which he was paid for flying with the company. He couldn’t see anywhere in the regulations where he couldn’t list it toward total flight time, so long as he didn't claim any of the time as

pilot in command unless he actually was. He did originally claim some time as second in command because the company listed him as second in command on the company manifests for the flights. In two entries, amounting to less than 8 hours, he logged this second-in-command time with explanatory notes such as “charter crew concept.” But then he was told by the POI that the flight could not be logged as second in command because he was technically not a required flight crewmember on the Part 135 flights and the company was not approved to train second in command. So, he crossed out the two second-in-command entries but still listed the total time. After that, while he did not log the time as second in command, in the remarks section he recorded that he was “acting” second in command. He felt that since he was an observer, performing functions, and being paid by the company, it was proper. He saw nothing in the regulations that prevented it. The company knew how he was logging the time.

Here is how his logged flight time was called into question. He was ready to upgrade to captain on the Baron. He was scheduled with the company’s FAA Principal Operations Inspector to take a check ride in the Baron for the addition of multiengine privileges under Part 135. The company, as a favor to him, asked the FAA inspector to give him the practical test for an airline transport pilot certificate at the same time using the company Baron. He presented himself to the FAA inspector with his application and logbook to take the certification test. On his application (FAA Form 8710-1, Airman Certificate and/or Rating Application), he claimed 1926 hours of total pilot time, 1846 hours of pilot-in-command time, and 598 hours of cross country pilot-in-command time. These times came right out of his logbook, and included the time he flew for the company.

The inspector, in reviewing the logbooks to confirm the flight time, noticed that some of the entries showed time in multiengine aircraft, some in fairly sophisticated multiengine aircraft (the King Air), and some indicated that the time was flown under Part 135 or annotated with the word “charter.” The inspector knew that the pilot had not yet been qualified to fly multiengine under Part 135. The inspector questioned the entries.

After some discussion with the inspector, including a review of Part 61, the pilot became convinced that he had been mistaken in how he recorded some of the time. So, he made changes to the entries in his logbook to comport with what the inspector told him he could log under Part 61. Even though none of the disputed time was necessary for the ATP or Part 135 multiengine check, that didn’t solve his problem. The check ride was suspended. The FAA ultimately charged him with a violation of FAR 61.59. The FAA, on an emergency basis (an immediate grounding), revoked all of his FAA certificates, including his commercial pilot and flight instructor certificates. The FAA charges focused on ten entries in his logbook, amounting to some 23 hours of pilot time, all paid time, flying for the company.

Was the pilot padding his time, or more importantly, was he guilty of fraud and intentional falsification in violation of FAR 61.59? The FAA believed so, and so did the NTSB. The pilot appealed the case to the NTSB. The NTSB sustained the FAA charges as well as the revocation of all of his certificates. Whether we agree or disagree with the outcome of this case, it is a dramatic illustration of what can happen to a pilot who, innocently or otherwise, pads his or her flight time. Pilots need to know about it.

Let’s take a look at the regulation in question. FAR 61.59(a) provides that: “No person may make or cause to be made:
(1)Any fraudulent or intentionally false statement on any application for a certificate, rating, authorization, or duplicate thereof, issued under this part [Part 61, which deals with the certification of pilots, flight instructors, and ground instructors];
(2)Any fraudulent or intentionally false entry in any logbook, record, or report that is required to be kept, made, or used to show compliance with any requirement for the issuance or exercise of the privileges of any certificate, rating, or authorization under this part [the same Part 61].”

Recognizing how strict the FAA and NTSB can be, it is also a good idea to review FAR 61.51 which covers pilot logbooks, and tells in detail what needs to be logged, and how. FAR 61.51 always generates a lot of questions from pilots. It is too long to deal with in this column. We will address it in future columns.

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

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PILOT-COUNSEL: Special VFR

10/29/2020

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December 2019 editorial comment and update: This article first appeared in the July 2000 AOPA PILOT magazine. Since then the noted FAR 91.157 has not changed and therefore, the analysis offered in the article remains valid today. In a notable 2012 Chief Counsel Opinion, the FAA maintains that on approach for landing at an airport with AWOS, the AWOS reported visibility will supersede a pilot’s report of airborne flight conditions. In other words, ATC may not grant special VFR clearance to land at an airport with AWOS when the AWOS reported visibility is less than 1 statute mile, despite a contention by the pilot that flight visibility is greater than 1 statute mile.

Do you know the technical difference between ground visibility and flight visibility? It could be important. Suppose you are sitting in your aircraft on the ground at a satellite airport (an airport that is in the same airspace area as the primary airport on which the airspace designation is based). The primary airport is reporting less than one-mile ground visibility. The satellite airport does not have weather reporting, but you can see a mile or more in all directions. You see that the haze layer is not very thick. You would like to be able to depart special VFR, get on top of the haze, and proceed VFR to a destination that is reporting good VFR conditions. Can you legally obtain a “special VFR” clearance? There has been confusion about the answer to that question, which has led to a regulatory change we will explain.

In this situation, the technical difference between ground and flight visibility becomes important.

That’s because, in order to get a special VFR clearance from the ATC facility controlling the airspace, ground visibility at the departure airport must be at least one statute mile. If ground visibility is not reported at the airport, as in this situation, then flight visibility must be at least one statute mile.

This has been the problem. Except for the regulatory change, technically, a pilot on the ground cannot determine flight visibility. Flight visibility is by definition determined by a pilot from the cockpit. The FAA interprets this definition to mean that flight visibility can only be determined when an aircraft is airborne.

Ground visibility, on the other hand, is an officially reported condition, not a pilot observed condition. Ground visibility is defined to be “the prevailing horizontal visibility near the earth’s surface as reported by the United States Weather Service or an accredited observer.” A pilot, unless he/she also happens to be an accredited weather observer, cannot report ground visibility.

Unless there happens to be a pilot in flight who reports back the flight visibility conditions (who doesn’t have to be an accredited observer), our pilot on the ground is stuck. ATC has been reluctant to issue a special VFR clearance when the weather at the main airport was reported to be visibility less than a mile. A regulatory change solves this situation, and in explaining it, gives us an opportunity to review the “special VFR” regulation.

Let’s start with the basics (forgive the pun) of FAR 91.155 that all pilots know but like to be refreshed about from time to time. (There are additional requirements for student and recreational pilots). Let’s look particularly at the “basic” (as distinguished from “special”) VFR weather minimums that apply to VFR operations at an airport within controlled airspace. By that I mean an airport that has controlled airspace that begins at the surface of the airport. That’s any airport within Class B, C, and D airspace. That’s also any airport within Class E airspace that begins at the surface of the airport (not an airport that has Class G airspace at its surface with Class E airspace above). The basic VFR visibility minimums that apply in this airspace are: at least three statute miles ground visibility, and at least three statute miles flight visibility. In other words, a pilot may not operate an aircraft to or from such an airport under VFR with less than three miles visibility, both ground and flight.

Also as part of the basic VFR requirements, if the ceiling being reported at the airport is less than 1,000 feet, an aircraft may not be operated VFR beneath the ceiling.

For completeness we must mention that within this airspace the “basic” cloud clearance minimums also apply. Here they are. A pilot may not operate an aircraft at a distance from clouds that is less than 500 feet below, 1,000 feet above, and 2,000 feet horizontally. (Not relevant here, but remember that there are stricter minimums in controlled airspace above 10,000 feet MSL.) There is one interesting exception to these cloud clearance requirements. In Class B airspace, which presumably has the highest density of traffic, an aircraft may be operated closer to clouds than these minimums. The minimum is “clear of clouds,” the same minimum we see in some Class G, uncontrolled airspace, and in special VFR operations. It makes sense, if you think about it. All aircraft in Class B airspace are being provided separation service by ATC. And it would cause problems for the controllers if pilots refused radar vectors or routings because following them would cause less than the required cloud clearances.

Which brings us to the “special VFR” rules of FAR 91.157. We can get a break from the “basic” minimums if we first obtain a special VFR clearance from the ATC facility that has jurisdiction of the airspace. Then the “special” and not the “basic” VFR minimums apply. The special VFR weather minimums are one-mile flight visibility and clear of clouds. Under the special VFR rules, in addition to the flight visibility minimum, there is also a ground visibility minimum. An aircraft may not takeoff or land under special VFR unless ground visibility is at least one mile. If ground visibility is not reported, then flight visibility must be at least one statute mile.

Back to our pilot on the ground at the satellite airport. He can’t take off because ground visibility is not reported at the satellite airport, and he can’t make a flight visibility determination because he is not in flight. This is a dilemma that has now been resolved.

Since May 23, 2000, FAR 91.157 has been amended to expand the term “flight visibility” to include the visibility from the cockpit of an aircraft in takeoff position at a satellite airport that does not have weather reporting capabilities. This allows a pilot at such an airport to determine whether the visibility minimums exist for a special VFR departure. If the pilot on the ground determines that the visibility is one mile or more, special VFR is permissible.

The amendment makes clear that a pilot’s determination of flight visibility from the cockpit of an aircraft on the ground is only for the purpose of the special VFR rule. All other flight visibility determinations must be made in flight. Similarly, it makes clear that this visibility determination is not an official ground visibility report, since the pilot is not an official weather observer. The amendment also makes clear that this relaxation applies only to flights conducted under Part 91.

The rest of the rules governing special VFR operations still apply.

For special VFR at night, the pilot must be rated and current for instrument flight, and the aircraft must be equipped for instrument flight. For this rule (it's different for other rules) night is considered to be the time between sunset and sunrise. (In Alaska, the "instrument" requirement applies when the sun is less than 6 degrees above the horizon.)

Helicopter operators get some additional benefits. A helicopter may be operated special VFR without the one-mile visibility minimum. And for special VFR at night, a helicopter pilot does not have to be instrument rated, and the helicopter does not have to be equipped for IFR.

While a special VFR clearance may be obtained at most airports within controlled airspace, it is not permitted for fixed-wing aircraft at some 33 specifically identified airports; they are indicated on visual charts and in aeronautical publications. As you would guess, they are the airports with the highest traffic density.

Our explanation of the technical difference between ground and flight visibility is important to pilots beyond this rule change. Where an airport in controlled airspace officially reports the weather, a pilot operating an aircraft at that airport (taking off, landing, or entering the traffic pattern) is bound by the reported ground visibility. Otherwise, and most often, the visibility minimum is flight visibility as observed by the pilot from the cockpit. For example, an aircraft transiting the controlled airspace, but not operating at the airport, must maintain flight visibility of at least three miles but is not bound by the officially reported ground visibility.

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

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