​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.

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

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

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

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

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

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

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

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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
 

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.
​
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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

​​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. 

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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

  
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. 

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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

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.
 
 
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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

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. 
 
  
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​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

​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. 
 
 
 
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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

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.
 
 
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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