December 1, 2007
By John S. Yodice
John S. Yodice is the legal counselor for AOPA.
"Hard cases make bad law" is a legal truism. It rears its ugly head all too often, sometimes even in decisions of the National Transportation Safety Board (NTSB) in FAA enforcement cases. Here is one that establishes the law that a minor condition such as a bent light shield on the wingtip of a Cessna 182, which had been bent back into position by the pilot with his fingers, renders an aircraft unairworthy. Or, more precisely, not "in an airworthy condition" in violation of FAR 91.7(a). I suspect that the board made this "bad law" because, as we will see, it was a "hard case."
The wingtip light shield had been bent in a taxiing incident. It happened while the weather was clear but very windy. According to the pilot of the taxiing 182, a gust of wind caused him to accelerate the aircraft past the center point of the taxiway, striking the wingtip of a Beechcraft King Air and bending the light shield on the wing of his 182. The "collision" was so minor that a passenger on board the 182, when being told by the pilot that he thought that he had scraped the wing of the King Air, said that he didn't feel anything.
Here is why the case was a "hard" one. A state trooper, who was the chief pilot of the state police's aviation unit, was on site and saw the incident. The trooper approached the 182 pilot and asked to see the pilot's airman and medical certificates and his driver's license. The pilot didn't produce them and, of course, by regulation he was required to do so. The pilot admitted that he did not have those items with him. At the same time, the FAA was notified of the incident. An FAA inspector went to the airport, but by the time he arrived, the pilot had already flown out. The FAA inspector thought that under the circumstances the pilot should have arranged for an internal, complete inspection of the aircraft before operating it again. Even though the pilot had the aircraft promptly inspected by his mechanic who certified the aircraft as airworthy, the inspector felt that the pilot should not have taken off when the aircraft was "in an unknown" condition.
The FAA inspector threw the book at the pilot. In addition to charging him with the unairworthy violation, the FAA charged him with operating his aircraft so close to the other aircraft that it created a collision hazard; operating his aircraft in a careless and reckless manner; departing the airport without first taking corrective action, inspecting, or repairing his aircraft; operating the aircraft while he didn't have a current medical certificate; and failing to present his pilot certificate, medical certificate, logbook, and other items in response to a request by a law enforcement officer. The FAA ordered the suspension of his commercial pilot certificate for 180 days (on appeal to the NTSB the law judge reduced it to 100 days because the FAA failed to prove one of the alleged violations).
Last month in this column we discussed the NTSB's case-law definition of airworthiness (" Pilot Counsel: The Definition of 'Airworthy Condition'," November Pilot). The term is not defined in the Federal Aviation Regulations. Over the years, the NTSB has ruled that the standard for airworthiness consists of two prongs: (1) whether the aircraft conforms to its type certificate and applicable airworthiness directives; and (2) whether the aircraft is in condition for safe operation. In truth, there are very few pilots who have ever seen the type certificate of the aircraft they fly, nor are type certificates easy to come by. But, the NTSB, in deference to the FAA, has formulated this standard as a convenient way to enforce FAR 91.7. To temper the harshness of this standard, the board, in FAA enforcement cases, has taken into consideration whether the operator "knew or should have known" of any deviation of the aircraft's conformance with its type certificate. The board, applying common sense, has also held that small, insignificant deviations will not render an aircraft unairworthy.
But, in applying this two-pronged standard in this case the board, on appeal, abandoned its common-sense approach. The board acknowledged that, "the administrator has not presented evidence to prove that the [pilot's] aircraft did not conform to its type certificate." Rather, the board in its haste to find an airworthiness violation in this "bad" case, seized on the second prong to conclude that the FAA did show "that the aircraft was not in a condition for safe operation." The board based its conclusion on the testimony of the FAA inspector who said that the aircraft was not in a condition for safe operation (this testimony is inherently incredible because of the insignificant condition itself and the subsequent airworthiness inspection), and in addition, relied heavily on the fact that the pilot "knew of the aircraft's condition of questionable airworthiness." The board said, "[the pilot] does not dispute that he was aware of the bent [light] shield, and acknowledges that he bent it back before departing. [The pilot's] awareness of the potentially unsafe condition leads us to conclude that his operation of the aircraft resulted in a violation of Section 91.7(a)."
As I said earlier, hard cases make bad law. The trouble is that the board's undercutting of its own common sense rule that small, insignificant deviations will not render an aircraft unairworthy, makes it difficult for aircraft owners and pilots, who are overwhelmingly safety conscious and compliance disposed, to try to comply with non-sensible laws, such as as this one, adopted by the board in litigation decisions.
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