September 1, 2000
By John S. Yodice
Do you sometimes rent an aircraft from a fixed-base operator? Most of us have, and will. When you do, do you ask to see the aircraft's logbooks to make sure that the aircraft has a current annual inspection? If you don't ask to see the logbooks, do you at least ask the FBO about the inspection status of the aircraft?
Most of us don't do either, normally. The general practice of most renter pilots is to assume that an aircraft offered for rental by an established and reputable FBO has a current inspection. Renter pilots also assume that the aircraft is properly maintained and is in airworthy condition—subject, of course, to the usual preflight inspection of the aircraft that any reasonable pilot would perform before going flying. Unless there are circumstances suggesting otherwise, most pilots reasonably make these assumptions.
According to the FAA and the NTSB, however, these assumptions are wrong, and you make them at your own risk of being found in violation of the Federal Aviation Regulations.
That's the pronouncement of a recent enforcement case. It is now the law that a renter pilot must ask to see the logbooks of an aircraft being rented, in order to determine the inspection status of the aircraft. (There is a suggestion from a citation to an earlier case that maybe asking the FBO about the annual inspection status of the aircraft, along with years of personal experience with the aircraft and "occasional reviews of its maintenance records," could be sufficient in lieu of reviewing the logbooks before each flight.) The implications of the case go beyond just the annual inspection status of the aircraft, and beyond just rental of an aircraft.
The case making this pronouncement involved a commercial pilot/flight instructor who, one June day, rented a Cessna 152 from a local FBO. This was a fairly routine event. The pilot showed up at the FBO, asked for the airplane, and was given the keys to the airplane by the FBO. It was not the first time the pilot had rented this particular airplane. Actually, a few months earlier in February, the pilot had made an arrangement with the FBO—which was also a flight school—to give some flight instruction in the airplane. Since then, he had rented it a time or two before the June rental. Unbeknownst to the pilot, 12 days before the June flight, the annual inspection on the airplane expired. The flight was made without mishap and without the pilot's being aware that the airplane was out of annual.
Enter the FAA. Shortly after this rental, a couple of FAA inspectors were doing a routine surveillance of the FBO's flight school. In the course of reviewing the maintenance logs of the FBO's aircraft, they discovered that this Cessna 152 was out of annual inspection. A little more checking found that the airplane had been rented to the pilot. As a result, the FAA took action against the pilot, suspending his commercial pilot certificate for 30 days, charging him with violation of FAR 91.405(a)(1) ( www.aopa.org/members/files/fars/far-91.html). The case doesn't tell us what, if any, action was taken against the FBO, nor does it talk about the requirement for a 100-hour inspection.
Here is what the relevant part of that regulation says. "No person may operate an aircraft unless, within the preceding 12 calendar months, it has had…an annual inspection in accordance with part 43 of this chapter and has been approved for return to service by a person authorized by Section 43.7 of this chapter…." You've seen it before, and you have generally known about it since you've been flying—no surprises here.
The pilot didn't think that the FAA's action was fair. He believed that it was reasonable for him to expect that a flight school would keep its aircraft current. He appealed the suspension to the NTSB. In defense of the FAA charge he argued, and the FAA conceded, that there is no specific requirement in the regulations that a pilot, before he rents an aircraft, check its logbooks. But, the FAA countered, he—as the pilot operating the aircraft—had the absolute responsibility to comply with this FAR, and checking the logbooks is the best and most assured way of confirming that the aircraft has been inspected within the past 12 months. The NTSB bought the FAA's counter-argument.
As a result, the FAA and the NTSB upset a longstanding general practice and created new law imposing a more stringent requirement on renter pilots. The NTSB did reduce the period of suspension to 15 days because the FAA dropped one of its charges. However, the NTSB made clear that, in general, a 30-day suspension is warranted for such a violation.
According to the NTSB: "While [the pilot] may have presumed that an aircraft offered for rent would be perfectly maintained and inspected, that presumption was not a reasonable one. The pilot in command is ultimately responsible for conducting the flight in accordance with applicable regulations, one of which prohibits the operation of an aircraft that has not received an annual inspection within the past 12 months. The expectation that the inspection had been done is not sufficient to relieve [the pilot] of this responsibility."
The law judge who heard the case—a pilot—projected even further on this principle of law. According to the transcript of the hearing, the judge said, "Similarly, a pilot, if he's going to operate the aircraft IFR, is responsible for assuring that the altimeter has been checked within the [past] 24 months. He's also required to assure that his radio navigation equipment has been properly checked [I surmise that the judge was referring to a VOR check] and that entries have been made in the logbook. If it hasn't, then he has to check them and make the entry before he goes into instrument conditions. The only way he can do that if you're a renter is to look in the maintenance records."
Obviously, this principle could be projected even further. The limit to any of these regulations that are phrased in terms of imposing absolute responsibility on the pilot in command or "operator" of an aircraft, and there are many of them, should be one of reasonableness to assure an adequate level of safety. There are many situations where a pilot must rely on the performance of others to discharge his or her responsibility under the regulations. FAR 91.7 imposes an absolute responsibility on the pilot to assure that the aircraft is in airworthy condition. Should a pilot be able to reasonably rely on work done by an FAA-certificated mechanic? Should an airline captain be able to reasonably rely on the walkaround inspection performed by his first officer? Of course.
The problem is that sometimes the bureaucrats charged with the responsibility to enforce and adjudicate these absolute regulations don't have the expertise to assess the reasonableness of the pilot's reliance. Sad, but true. I believe that is what happened in this case. I would have expected that the FAA inspector, who often is a pilot, would have known and appreciated the safety implications of this practice of renter pilots. But when we look into the case further we find that the inspector was an airworthiness inspector. She probably had very little expertise with which to assess the reasonableness of the pilot's reliance on the FBO. My guess is that the FAA lawyer who handled the case is not a pilot, and she similarly lacked expertise. I believe that the judge, who has general aviation experience, felt himself bound by the precedents of the NTSB. The NTSB lawyers who write these precedential decisions have an abysmal record of lacking general aviation expertise, aggravated by a strong bias in favor of the FAA. I doubt that they even know that the logbooks do not have to be kept with the aircraft and typically are not kept with the aircraft. I wonder if they check on the inspection status of the rental cars they almost certainly get from time to time at automobile rental agencies.
All of this results in the development of law, as in this case, that imposes absolute burdens on pilots that make little sense in terms of air safety.
Links to additional information on inspections can be found on AOPA Online ( www.aopa.org/pilot/links/links0009.shtml).
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