October 1, 2006
By John S. Yodice
John S. Yodice and his associates provide legal counsel to the more than 400,000 members of AOPA.
"Hell hath no fury" like an FAA inspector who believes that he was buzzed by another aircraft. In this interesting tale, the inspector successfully prosecuted a 180-day suspension of the buzzing pilot's commercial and flight instructor certificates, a severe sanction to one who may be earning his livelihood using those certificates. What is probably more important, this case affords us an unusual opportunity to look at the applicable right-of-way rules in a real-life situation, rules that many of us may not have read in detail for some time.
The hapless flight instructor who suffered the certificate suspensions was giving a flight review to a pilot who was in the left seat at the controls of the instructor's Cessna Cardinal. The Cardinal was downwind in the airport traffic pattern preparing to land. There was a Cessna 172 on final approach. As luck would have it — bad luck, that is — there was an FAA inspector on board the 172. The FAA inspector was administering an initial checkride to a pilot-applicant for a flight instructor certificate. It also was bad luck that the pilot-applicant of the 172 was, at the time, demonstrating a soft-field landing, using more of the runway than normal, and missing the turnoff to the first taxiway. Instead, the 172 taxied to the next taxiway, about 2,400 feet down the 4,000-foot runway, and made a right turn onto it.
The pilot of the Cardinal flew a longer downwind leg to allow the 172 to exit the runway. Even so, the Cardinal was on final approach while the 172 was still landing. Because the 172 took longer than normal to exit, the possibility that the Cardinal would have to do a go-around was growing. The Cardinal was across the threshold, about 1,000 feet from the 172, in full-flap configuration. According to the flight instructor, who was not doing the flying, the Cardinal was coming in too fast. The 172 was still partially on the runway. The Cardinal flight instructor announced to the pilot in the left seat that he was taking over the controls to do a go-around. The instructor banked the Cardinal to the right and overflew the 172, which was then on the taxiway. According to the flight instructor and his left-seat pilot, they were at an altitude of approximately 100 feet at this point and climbing. In this configuration the Cardinal had poor climbing performance.
The FAA inspector believed that the Cardinal had deliberately buzzed their aircraft in retaliation for staying too long on the runway. The FAA inspector and the pilot-applicant estimated that the two aircraft came within a wingspan, approximately 35 feet, of each other.
At an appeal hearing before an administrative law judge of the NTSB, the Cardinal flight instructor's case was hurt by the testimony of his left-seat pilot who was taking the flight review. The pilot testified that he did not know why the flight instructor took the controls. He said that if he had remained in control he would have continued to fly straight ahead and then climb out, rather than banking to the right. His other testimony was more helpful to the flight instructor. The pilot's estimate of the closeness of the encounter was greater than the FAA inspector's and more in line with his flight instructor's. He said that, on the turn and at their closest, the two aircraft were two to three wingspans, 70 to 105 feet, apart.
The flight instructor had an explanation for what happened. He said he took the controls as a precautionary measure, to recover from a bad situation. He acted to avoid an accident. He explained that the Cardinal, at full flaps and then at half-flaps, could not climb quickly and that that was the reason he came so close to the 172. He said the distance between the aircraft was about 100 feet, an estimate more in line with his left-seat pilot. He testified that there never was any danger.
At a hearing, the judge chose to believe the FAA inspector and the other FAA witnesses, rejecting the flight instructor's explanation. The judge found that the 172 had the right of way and that the Cardinal failed to stay well clear of it, creating a collision hazard. When the flight instructor took the controls on final at approximately 100 feet in altitude, he need not have banked to the right nor need he, as the law judge found, have continued to reduce his altitude and overfly the other aircraft at an altitude that put the occupants of that aircraft in fear for their safety. As a result, the judge found that the flight instructor violated FARs 91.111(a), 91.113(b), 91.113(f), and 91.13(a). In a later appeal to the full NTSB, the board affirmed the law judge's findings.
Here, for review, are the regulations that were found to have been violated. Note that they are not all of the right-of-way rules, just the ones applied in this case:
Section 91.111(a) provides that "no person may operate an aircraft so close to another aircraft as to create a collision hazard."
Section 91.113(b) states: "General. When weather conditions permit, regardless of whether an operation is conducted under instrument flight rules or visual flight rules, vigilance shall be maintained by each person operating an aircraft so as to see and avoid other aircraft. When a rule of this section gives another aircraft the right-of-way, the pilot shall give way to that aircraft and may not pass over, under, or ahead of it unless well clear."
Section 91.113(f), "Overtaking," states that "each aircraft that is being overtaken has the right-of-way and each pilot of an overtaking aircraft shall alter course to the right to pass well clear."
Section 91.13(a) is not a right-of-way rule but one that the FAA adds as a residual charge in virtually all operational violation cases against pilots. It proscribes in very general terms the "careless or reckless" operation of an aircraft that endangers the life or property of another.
So, as enforcement cases go, this one does provide an interesting glimpse of how the FAA will treat a right-of-way violation, and how the NTSB will typically treat an appeal of a certificate suspension, with the added benefit that this case gives us an opportunity to review the specific wording of rules that were applied.
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