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A selection of John Yodice's

Pilot-Counsel Columns

  Select a title below or scroll down to view all 

​                                    Special VFR  ~  Logging Flight Time  ~  Buyer Beware  ~  Watch that Altitude!    
​                           Private Vs. Commercial Flying  ~  Pilots And Privacy  ~  Your Insurance & Logged Flight Time   
                                     Instructor Liability Still a Concern ~  Low Flight: A Case Study ~ Obscure FAR 61.15
                                                  Defying ATC Instructions  ~  The $5,000 Fine  ~  An Airport Wins One
​                                                                                                Reasonable Reliance

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PILOT-Counsel           Reasonable Reliance

6/17/2022

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​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
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PILOT-Counsel:                       An Airport Wins One

12/13/2021

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​November 2021 editorial comment and update: This article first appeared in the Octoberr 1999 issue of AOPA PILOT magazine.  A lot has happened at Connecticut’s Tweed airport in the 22 years since John Yodice wrote this article, not the least of which is more litigation.  The most recent litigation that we’ll address in this update relates to the expansion of Tweed’s runway 2/20.  And, interestingly, the complainant was not nearby homeowners, but rather, indirectly, the state of Connecticut. 
 
In 2009, the Connecticut state legislature passed an act that restricted Tweed’s runway 2/20 to its existing length of 5,600 feet.  The Tweed-New Haven Airport Authority, seeking to expand the runway length, brought a case against the Connecticut Attorney General in his official capacity seeking a declaratory judgment.  In 2017, the U.S. District Court found that the airport authority did not have standing to bring suit because there was no injury caused directly by the statute—the act noted above. Furthermore, the court claimed that state law, in this specific instance, was not preempted by federal law.  The airport then appealed to the Second Circuit Court, and whereupon, in July of 2019, the decision was overturned.  The 3-judge appeals court panel found that the Runway Statute did indeed injure Tweed by preventing it from extending its runway. The State made numerous other claims seeking to affect its position on standing, but the court was unpersuaded.  On the question of federal preemption, the court said: “We straightforwardly conclude that the Runway Statute falls well within the scope of the FAAct’s [FAA’s enabling statute] preemption because of its direct impact on air safety.”  It's yet another win for the airport! 
 

It’s a fact of life.  Many airports are under constant pressure by local residents who complain about the sound and sight of airplanes.  What often makes the situation unfair is that these complaining residents moved next to the airport knowing full well that an airport is close by, and that they should expect overhead air traffic coming and going from the airport.  That doesn't seem to prevent them from pressing for traffic restrictions--and sometimes outright closure--even though there has been no significant increase in traffic or noise impact on them since the time they purchased their homes.
 
That's why it is heartening to read a recent decision of the Connecticut Supreme Court rejecting a claim by two such residents who years ago purchased a home very near to the Tweed-New Haven Airport.  This is a win for aviation interests that could be an important precedent. 
 
The Tweed Airport is owned by the city of New Haven, Connecticut.  It has been an airport since 1931.  It had been the subject of litigation by nearby homeowners even before the lawsuit we are reporting here.  In that earlier litigation, several local residents objected to commercial jet traffic coming and going from airport during two periods between 1967 and 1975.  They sued in Federal court.  In that suit, the court ruled in favor of the homeowners, finding that the overflights had substantially interfered with the owners' use and enjoyment of their properties.  The court held that the overflights amounted to a "taking" for which the homeowners must be compensated. 
 
In 1979, the plaintiffs in the case we are reporting, bought their home near the airport, paying $60,000 for a house built in 1959, well after the airport had been established.  It has served as their home since they bought it.  The home is located some 450 feet north of the northern boundary of the airport and about 1500 feet from the end of one of the 

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

​                                         Copyright © Yodice Associates 1999.  All rights reserved.

       
    
John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com
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PILOT-COUNSEL:                The $5,000 Fine

10/8/2021

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​October 2021 editorial comment and update:  This article first appeared in the May 2012 issue of AOPA PILOT magazine.  John Yodice’s advice not to surrender an FAA issued certificate without first consulting a qualified aviation attorney remains valid.  We recently encountered a situation where an FAA Regional Flight Surgeon sent a letter to an airman threatening a “…suspension, revocation, of a civil penalty of up to $1,548 for each day you fail and refuse to surrender the Airman Medical Certificates.”  The FAA letter referred to issuance dates on two medical certificates that were roughly two and four years old and clearly past the 60-day reversal period.  The FAA in general, and this Regional Flight Surgeon in particular, doesn’t have the authority to deny and demand surrender of medical certificates that were previously affirmed (not denied within 60 days of issuance). This is not to say the FAA doesn’t have the authority to assert that an airman is not qualified due to a particular medical condition, but in doing so and acting upon it, they must afford the airman certain legal protections—they cannot just take a medical certificate!  Rather, to affect the suspension or revocation of an affirmed medical certificate, the matter must be referred to the FAA’s legal office who can then pursue certificate action.  And, if an order of suspension or revocation is issued and not appealed by the airman, the airman must surrender his or her medical certificate or face the prospect of a civil penalty.  In the noted instance, the Regional Flight Surgeon’s demand for medical certificate surrender was inappropriate, as was her threat of civil penalty action for not doing so.  
A recent decision of the National Transportation Safety Board came across my desk that assessed a $5,000 fine against a pilot for failing to surrender his medical certificate to the FAA.  The case illustrates one of the few circumstances in which the FAA can make such a demand without affording the pilot all of the legal protections we have written about in this column over the years.  Faithful readers of this column will recall our frequent advice that pilots should never voluntarily surrender a pilot or medical certificate to anyone including the FAA until he or she has gotten some expert advice.  These are valuable documents, hard to get, and hard earned.  Once surrendered, they may be very difficult to get back.  As we will see, the FAA medical certification process has an unusual, but limited, aspect that short circuits our frequent advice. 
​
The FAA receives and processes approximately 450,000 applications for airman medical certification each year.  Most medical examinations conducted in connection with these applications, the ones involving most pilots, are performed by physicians in private practice who have been designated to represent the FAA for this purpose.  A medical certificate issued by such an Aviation Medical Examiner can ripen into a certificate to which the general legal protections apply, but only after 60 days after the date of issuance (date of examination).  Within that 60-day period the issuance of the medical certificate, which is already in the pilot’s possession, can be reversed by the Federal Air Surgeon, or a Regional Flight surgeon, or the Manager of Aero Medical Certification Division (AMCD).  The 60-day reversal period can be extended if the FAA requests additional information from the pilot within 60 days after the issuance.  Then, the above-named officials have 60 days after receipt of the additional information to reverse the issuance.
This case tells us what can happen if an airman refuses to surrender a medical certificate that has been timely reversed by the FAA.  In this case, under the circumstances, it was a $5,000 fine.  The pilot had earlier reported to the FAA, as he was required to, that he had suffered an alcohol-related suspension of his driver’s license/privileges.  Some months later, the pilot applied to an Aviation Medical Examiner for a third-class medical certificate, and in routine fashion received it.  When the application was routinely reviewed by the Manager of the AMCD, the Manager, noting the driver license suspension, asked for additional information to determine the pilot’s eligibility to hold a medical certificate.  After the pilot failed to provide the requested information, the Manager reversed the issuance of the certificate within the 60-day period as extended by the request for additional information.  The Manager asked the pilot to return the certificate to the FAA, and offered a grace period.  The pilot again failed to respond, and the FAA initiated a civil penalty assessment proceeding seeking a $5,000 fine.  The FAA has a sanction guidance table that provides a range of sanctions for various violations, including for failure to surrender a certificate when legally demanded.

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

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

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

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

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PILOT-COUNSEL:             Defying ATC Instructions

9/16/2021

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​September 2021 editorial comment and update: This article first appeared in the January 1999 issue of AOPA PILOT magazine.  The case referenced in John Yodice’s article makes clear that compliance with ATC instructions is not optional, at least not when a threat of collision exists during approach and landing at a Class D airport.
 
FAR 91.123(b) states 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.”
 
In a 2007 case with a far less severe outcome than the noted twin Cessna case, a Citation pilot on an IFR flight plan initially refused to comply with an ATC instruction to descend from flight level 350 to 310, citing “operational necessity”.  The pilot ultimately descended, but the delay in complying created a traffic conflict. The pilot was cited and at the NTSB hearing he argued that the descent would have “put [him] near [his fuel] reserves,” and which he further argued was unsafe.  The pilot acknowledged that there was no imminent emergency and this rendered his fairly creative defense ineffective.  The law judge stated “… ATC instructions are not subject to bargaining or need for verbal justification, and that operators must comply with ATC instruction or be subject to sanction.”  The law judge ordered a 60-day suspension and deemed the pilot ineligible for a waiver of sanction under the ASRP (NASA program), because his initial refusal to comply with ATC’s instruction was deliberate and not inadvertent.  The pilot appealed the decision to the full “board” at the NTSB and the suspension was upheld
.
   

A 10,000-hour corporate pilot was grounded by the FAA on an emergency basis because of a single air traffic control incident.  That's a pretty extreme action.  Let's try to put it in perspective. In the scheme of things, the revocation of an FAA airman certificate on an emergency basis is the most drastic enforcement sanction that the FAA can impose upon a pilot.  For one thing, revocation means that the pilot must apply for and requalify for the certificates if he or she wants them back.  For another, the FAA will probably not accept such an application for a year, and maybe not even as soon as that.  For still another, revocation on an emergency basis means that the certificates were revoked immediately, with no stay of the revocation pending review of the case by the National Transportation Safety Board--in other words, an immediate grounding.  Lastly, it is very unusual that FAA would take such drastic action based on a single incident. 

Here is what happened: The pilot was flying a twin-engine Cessna 310 into the Alexandria (Louisiana) International Airport.  The airport is in Class D airspace, requiring the establishment of two-way radio communication with the control tower prior to entering the airspace.  At the time, there was other traffic in the Alexandria airport area. 

As the Twin Cessna approached the airport, the pilot contacted the Alexandria tower, announcing that he was 5 miles southeast inbound for landing.  He later announced entering left downwind for runway 14.  He was told to continue and to report a left base for runway 14.  Later, because of other traffic in the pattern, the Twin Cessna was instructed by the tower to continue its downwind leg and to follow a single-engine Cessna.  The tower advised that the other airplane would be landing ahead of the 310.  The pilot of the Twin Cessna, looking all the while, advised the tower that he was unable 
to visually locate the traffic.  The tower then instructed the pilot of the Twin Cessna to continue on the downwind and said the tower would call his base leg.  He was then told twice to extend downwind, and twice he complied; when the pilot estimated that he was seven miles from the airport, and he could see no conflicting traffic, however, he advised the tower that he was turning base.
 
An extract of the ATC communications gives more flavor to the story:
Twin Cessna: "[Twin Cessna] is entering left downwind for runway 14."
Tower: "Twin Cessna [N number] roger, runway 14 is in use altimeter 2982 wind 180 at 20 continue and report a left base for runway 14."
Tower: "[Twin Cessna] you're number 3 correction yeah number 3 to follow a Cessna on a left downwind for runway 14."
Twin Cessna: "We're about to turn base for runway 14."
Tower: "[Twin Cessna] roger continue on your downwind you're number 3 to follow a Cessna also on a left downwind runway 14."
Twin Cessna: "I don't see a Cessna on a left downwind I see one on a right crosswind."
Tower: "Yes sir Cessna I have the Cessna in sight on a left downwind I'll call your base for you."
Twin Cessna: "You're going to put me in behind an airplane that's on a crosswind?"
Tower: "Negative sir you have a Cessna in your 12 o'clock on a left downwind."
Twin Cessna: "Roger no joy."
Twin Cessna: "Another pointout on the Cessna on downwind.  Has he turned base yet?"
Tower: "[Twin Cessna] he's on a left base now about 3 miles out."
Twin Cessna: "Roger no joy."
Tower: "Roger continue on your downwind."
Twin Cessna: "[Twin Cessna] is turning left base."
Tower: "[Twin Cessna] you have the Cessna in sight you're following?"
Twin Cessna: "I sure don't."
Tower: "OK I didn't tell you to turn base, continue on your downwind."
Twin Cessna: "Hey you're not determining when I can turn base son I do that, now where's the traffic?"
Tower: "Traffic should be in your vicinity."
Twin Cessna: "OK do you see the plane?"
Tower: "Yes sir I sure do."
Twin Cessna: "Is he on base or final?"
Tower: "He's on base to final."
Twin Cessna: "OK that's what we're asking."
Tower: "He's on base, he's on final now."
Twin Cessna: "Roger that."
 
The pilot proceeded onto final and landed, without a clearance to land, in front of the single-engine Cessna that had been cleared to land.
 
After landing, the Twin Cessna requested permission to execute a 360-degree turn on the taxiway.  He wanted to get a look at the traffic behind him.  The tower denied the request, and instructed the aircraft to taxi straight ahead.  The Twin Cessna made the turn anyway. 
 
On these facts, the FAA issued an emergency order revoking the pilot's airline transport pilot and flight instructor certificates--immediately grounding him.  The FAA alleged that the pilot had violated FAR Sections 91.111(a) (creating a collision hazard with another aircraft), 91.123(b) (failing to comply with ATC clearances and instructions), 91.129(i) (operating in Class D airspace before establishing communications), and 91.13(a), operating carelessly or recklessly.
 
The pilot was not at all happy about the handling of his flight by ATC, much less the FAA's reaction to the incident.  He appealed the FAA order to the National Transportation Safety Board.  He argued that the tower, a VFR tower, was improperly providing separation services by directing him to continue downwind when he could not locate the other aircraft, and by advising him when it would be safe to turn base.  He also complained that ATC could have done a better job helping him locate the other aircraft.
 
Both the law judge and the full Board rejected these arguments, and sustained the revocations.  The Board said:
 
Even if it were true that ATC would ordinarily not issue VFR traffic specific instructions as to how to fly the airport pattern, such instructions here, clearly intended to reduce the collision potential that a premature turn to base by respondent's aircraft could (and ultimately did) create, were, at the very least, appropriate.  To the extent that respondent found ATC's assistance in this connection unwelcome, he could have radioed his intent to exit the pattern, for re-entry when he had all traffic converging on the airport in sight, or he could have sought permission to land ahead of the aircraft that had already been cleared to land, an option that would have possibly prompted ATC to re-evaluate the relative positions of all aircraft within the airport environment and issue appropriate changes, if it believed them warranted. 

What the respondent was not free to do was ignore or defy ATC's instructions in favor of his own assessment that his aircraft should be accorded landing priority over one he could not find, but whose safety he should have appreciated could be seriously compromised if he did not allow ATC, which had both aircraft in sight, to manage the situation in accordance with its informed appraisal of how best to ensure safe operations within the controlled airspace it is charged with regulating.  Respondent's decision to land contrary to instruction and ahead of an aircraft he did not yet see was both reckless and demonstrative of a noncompliant attitude inimical to air safety.
 
The FAA and the Board considered the pilot's actions so bad that they refused to waive the sanction even though the pilot had filed a NASA Aviation Safety Reporting system form.  "An ASRP waiver is not available for deliberate, willful FAR violations, and [the] respondent's conduct was anything but inadvertent," said the NTSB.
​
                                 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:             Obscure FAR 61.15(e)

8/11/2021

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March 2021 editorial comment and update: This article first appeared in the June 2012 AOPA PILOT magazine.  Since then, nothing has changed regarding the FAA’s treatment of pilots found to have violated 61.15(e).  What has changed, is the FAA now offers the option of electronic reporting via a link to their website: Airmen and Drug- and/or Alcohol-Related Motor Vehicle Action(s) (faa.gov).  Previously, the delivery options were restricted to only mail or fax.  This is a welcome change.  What remains unwelcome is the FAA’s scrutiny of alcohol related occurrences requiring reporting in the first place.  As John Yodice points out in his article, a drug or alcohol related motor vehicle action can affect both pilot and medical certificates. It’s also important to remember that the reporting requirements for each are separate and distinct.  Failure to report or misreporting a qualifying occurrence can have serious consequences.  It is therefore advisable that pilots seek competent counsel from an aviation attorney or advisor when faced with reporting uncertainties.    
The number of FAA enforcement cases that come across my desk remind me that Section 61.15(e) of the Federal Aviation Regulations continues to generate an unusually large number of enforcement actions against pilots.  This is the regulation that requires pilots to report certain automobile driving infractions to the FAA.  In virtually all of these cases, the pilots didn’t know or remember this obscure regulation.  Pilots don’t associate driving infractions with their flying activities--and, why should they?  In fairness to the pilot community, the connection is pretty tenuous.  Still, many pilots are losing their pilot licenses, and usually not because they have driving infractions, but because they haven’t reported them to the FAA as required by the regulation.  So, this is a reminder of this obscure requirement.
 
In its simplest form, FAR 61.15(e) requires that a pilot report to the FAA any so-called "motor vehicle action" within 60 days of the action.
 
In addition to the tenuous connection, what makes the regulation difficult for pilots are several other things: one is the very broad definition of what constitutes a "motor vehicle action;" another is the fact that the report must be made to FAA’s “Security” Division (not 

​​a familiar FAA entity to general aviation pilots); a third and very importantly, there is the easy confusion of this requirement with the information required on an FAA medical application form.
 
As defined in the rule, a “motor vehicle action” can fall into one of two categories: convictions and drivers license actions.  Any state or federal court conviction related to the operation of a motor vehicle while "intoxicated by" or "impaired by" or "while under the influence of" alcohol or a drug is a motor vehicle action.  In the other category, a motor vehicle action also includes any cancellation, suspension (however short or technical or forgettable), revocation, or denial of a driver’s license for any alcohol or drug related motor vehicle offense. 
 
The report must be made not later than 60 days after the motor vehicle action.  Reporting on an FAA medical application form does not satisfy the requirement, even if the report is made within the 60 days.  Several years ago a pilot disclosed a motor vehicle action on his FAA medical application within the 60 days allowed.  He was unaware of FAR 61.15(e).  Reporting to the FAA is reporting to the FAA, right?  Wrong!  The report must be made to the FAA Security people, not the Medical people.  FAA cut him no slack.  He was found in violation of the regulation.
 
The report must be in writing.  But, contrary to the many other FAA reporting requirements, there is no official form.  Where the report must be sent and what it must contain is in the regulation itself and in a suggested letter on the FAA website (www.faa.gov).  The report must be sent to FAA, Security and Investigations Division (AMC-700), P.O. Box 25810, Oklahoma City, OK 73125, or fax to 405 954 4989.  The report must include the pilot’s name, address, date of birth, and airman certificate number.  It must contain the type of violation, the date of the conviction or administrative action, and the State that holds the record. 
 
A pilot must report each action to the FAA regardless of whether it arises out of the same incident or circumstances previously reported (as it many times does).  But if the same incident, or the same factual circumstances, leads to any combination of convictions and driver’s license actions, it will count only once toward the two that will lead to certificate action.  So, be sure to mention whether the motor vehicle action resulted from the same incident or arose out of the same factual circumstances related to a previously reported motor vehicle action.  For example, if you reported a temporary license suspension resulting from a traffic stop, and you were later convicted for the same offense, both must be reported but should only be counted once.
 
Under FAR 61.15(d) a pilot's certificate may (and likely will) be suspended or revoked if the pilot has two or more alcohol- or drug-related motor vehicle actions within a three-year period.  
 
The effects of a report, or a failure to report, are serious.  If a pilot does report a motor vehicle action, it will automatically trigger a review of the pilot’s file to determine if the pilot continues to be eligible for his or her airman certificate (two or more in a three-year period and you are out) or medical certificate (a history of alcoholism).  If a pilot fails to report even one conviction or administrative action, that is grounds for suspension or revocation of any pilot certificate or rating he or she holds.  It is also grounds for denial of an application for a certificate or rating for up to one year after the date of the motor vehicle action.  It is interesting (and disturbing) that a lot more pilots lose their pilot certificates under FAR 61.15(f) for failure to report (unknowingly), than for having two or more motor vehicle actions. 

​                                            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:         Low Flight: A Case Study

6/8/2021

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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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