PILOT-Counsel Reasonable Reliance

---

​June 2022 editorial comment and update: This article first appeared in the June 1996 issue of AOPA PILOT magazine.  In the 26 years since this article’s publication, many pilots and their lawyers, no doubt, have attempted to utilize the concept of “reasonable reliance” as a defense in FAA enforcement actions. It’s impossible to know how many pilots were successful at the NTSB ALJ (Administrative Law Judge) level (probably a scant few), but of the thirteen full NTSB Board cases reviewed for this editorial update that relate to “reasonable reliance”, only one was successful.  It involved an early morning IFR departure of an air carrier aircraft in weather conditions that were supposedly below published minimums.  Earlier that morning the crew had received and reviewed the dispatch package reporting below minimums conditions.  During taxi prior to their 5:45 departure time, one of the crew called “operations” on the company radio frequency to obtain current weather—neither tower nor ATIS was available at the airport until 6:00.  The station agent on frequency did some checking and came back with a report indicating a 500-foot ceiling and one-mile visibility. This report of above minimums conditions comported with the crew’s estimated observation and they departed. Unknown to the crew at the time, the weather information relayed by the station agent was obtained from a weather observer on the field and was not considered an official weather source.  The FAA sought certificate action against the PIC, who appealed to the NTSB ALJ.  The judge affirmed the alleged violation of FAR 121.651(a) - (Takeoff and landing weather minimums) and the PIC appealed to the NTSB.  On appeal, the full Board ruled that “In sum, we think it was reasonable, under the circumstances presented here, for respondent to believe he had received an official weather report through the station agent, and it was not unreasonable for him to take off, based on that information."  The PIC’s appeal was granted and the FAA’s order was dismissed.   
 
It's noteworthy to point out what we often see, and which is demonstrated by two of the thirteen full Board decisions, is that reliance solely on the word or recommendation of maintainers  or mechanics is not an adequate defense for pilots charged with operating an unairworthy aircraft. A typical scenario involves a pilot discovering a maintenance issue while on a trip away from the home airport. The scenario pilot consults a known and trusted mechanic via telephone, describes the discrepancy or condition and is perhaps told that the issue sounds benign and the mechanic further states or opines that it’s ok to fly it back home or elsewhere for further evaluation. Well, in such an instance, the pilot is solely responsible for determining if the aircraft is in condition for safe flight and is otherwise airworthy (see FAR 91.7), not the mechanic.  If the FAA finds out about a flight with a known discrepancy, they will investigate the circumstances and potentially seek suspension of the pilot’s certificate.  The FAA will not generally allow the buck to be passed to the mechanic—the mechanic’s responsibility extends to his or her performance and logging of actual maintenance and/or inspections and not to remotely provided assessments or advice. In other words, the FAA does not consider it reasonable for a pilot to rely on a mechanic’s advice or comments relating to safety and airworthiness of a particular aircraft when rendered solely over the telephone.  

How much should a pilot be able to rely on someone else to help with pre-flighting an aircraft, and even help with flying the aircraft?  After all, it is not unusual for one pilot to help another with such flying activities as calling for the weather; filing a flight plan; checking the fuel and oil levels; untying the aircraft; pulling chocks; or even helping with radios, navigation, and the like.

If the “someone else” makes a mistake, should the pilot in command be held responsible?  This becomes an important question if the mistake leads to an infraction of the Federal Aviation Regulations.  As we will see, the question comes down to one of reasonableness—or, more accurately, what the FAA and the NTSB would consider “reasonable reliance,” which is pretty narrow.

Here's the recent case, a pilot’s nightmare, which raised the question.

The pilot of a Baron on a Part 135 flight made a takeoff in the aircraft with a towbar attached to the nosewheel—a yellow, six-foot-long towbar.

Once the Baron became airborne, there was a loud banging noise that started the pilot’s adrenaline flowing.  The pilot tried to raise the landing gear.  The gear warning light stayed on.  He climbed for altitude to try to sort it out.  He tried to hand crank the gear down, but the crank would turn only to the position for one-quarter extension.  He tried the gear switch, and the green light on the nose gear flickered on and off.  He knew that he had a problem—probably a gear problem.  The banging continued with no obvious cause.  He decided to fly to a nearby airport with a control tower.  It was now after six in the morning and he knew that the tower was usually in operation by then.  He did a flyby and had the tower do a visual check.  It was then that the pilot learned the true nature of his problem—the towbar was still attached.  

He brought the baron in for a landing at the airport.  It didn’t land very well with the towbar attached.  On touchdown and rollout, the nosewheel collapsed.  The Baron slid to a halt, badly damaging the aircraft.  Fortunately, no one was hurt.  

Needless to say, the FAA didn’t take too kindly to a pilot’s taking off with a load of paying passengers with a towbar attached to the airplane.  The FAA suspended the pilot’s ATP certificate for 120 days, charging him with operating an unairworthy aircraft (in violation of FAR91.7[a]), and with being careless or reckless (in violation of FAR 91.13[a]).

How did it happen that the pilot missed the towbar on his preflight inspection?  The flight was scheduled to depart at 6 a.m. in the middle of winter in Colorado, and it was dark, windy, and cold. The pilot completed his preflight inspection while the aircraft was still in the hangar.  Then he put the towbar on the aircraft himself to pull it out of the hangar.

This was an air taxi flight.  The “someone else” in this drama was the owner of the air taxi operation, himself a pilot.  Th owner had no official piloting status in connection with the flight.  Even though he was a pilot and qualified to fly the Baron in FAR Part 91 operations, he was not listed as a pilot on the FAR Part 135 certificate and was not Part 135-qualified as a pilot in the air taxi operation.  This was a single pilot operation.  According to later testimony, he went along on the flight mostly for public relations purposes, to pamper the passengers.  He said that he was there to observe, to see how the operation was working.  

He did, however, help the pilot pull the airplane out of the hangar after the pilot completed the preflight inspection.  According to the pilot, the owner was pulling on the towbar while the pilot

​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