Legal Briefing

Skipping this can be costly

I just came across an airman's battle that should remind us that, as the pilot in command of our aircraft, it is our responsibility to be certain that our aircraft is airworthy, in accordance with all maintenance requirements, before operating the aircraft. Such responsibility includes a check that entries have been made in the maintenance logbook that describe maintenance performed and return the aircraft to service as airworthy. It is not good enough to rely on the word of your mechanic; you must look for, locate, and read that the maintenance entries are complete.

Where does this responsibility come from? Two regulations set out your regulatory responsibility regarding maintenance entries. Federal Aviation Regulation 91.405(a) states that,

Each owner or operator of an aircraft...shall ensure that maintenance personnel make appropriate entries in the aircraft maintenance records indicating the aircraft has been approved for return to service.

And, FAR 91.407(a) states that,

No person may operate any aircraft that has undergone maintenance, preventive maintenance, rebuilding, or alteration unless...It has been approved for return to service by a person authorized under FAR 43.7 of this chapter, and the maintenance record entry required by FAR 43.9 and 43.11, as applicable, of this chapter has been made.

In this case, the FAA accused the aircraft owner of violating both of these regulations for flying the aircraft when maintenance on the aircraft had not been recorded. The FAA also accused the owner of performing maintenance on the aircraft to get it ready to fly without the required supervision of a certificated mechanic.

The owner admitted that he did not see any paperwork before he took off. But, his defense was that he relied on the representations of the employees who had been working on the aircraft. These employees had told him that the airplane was ready, watched him work on the aircraft, helped him to load the aircraft before departing, and waved goodbye to him on the ramp. He said that no one had ever told him that the aircraft was unairworthy or unsafe to fly. And, this had all occurred after months of waiting for maintenance to be completed and making repeated arrangements to pick up the aircraft.

When the owner finally was told he could come pick up the aircraft, the aircraft still was not ready to fly when he arrived. The owner then waited several more days for the avionics company to finish working on the aircraft. However, none of these facts worked in the airman's favor. The NTSB found that the owner "failed to independently ensure that the required maintenance entries were recorded in the logbook and departed [the field] when, in fact, the required entries had not been made" and imposed a 75-day suspension against his commercial pilot certificate.

The owner filed a lawsuit against the avionics facility alleging breach of contract, negligent representation, negligence, and violations of the state's Consumer Protection Act. Among other damages, the owner sought to recover his attorney fees incurred in defending himself against the FAA's enforcement action. The avionics company moved to dismiss the owner's claims as they related to the FAA enforcement action, and the court granted its motion. The court reasoned, "As the owner and operator of the airplane, [he] was legally required to ensure that certain entries were made in the aircraft maintenance records before flying the airplane." Under state law, "a party is not liable for an opposing party's legal expenses arising from a separate action, unless it is solely responsible for the opposing party's exposure to the separate action....By not examining the logbooks to determine if the required entries had been made, plaintiff exposed himself to the possibility of an FAA enforcement action. Thus, as a matter of law, defendant could not have been the sole cause of plaintiff's exposure to that litigation."

The court rejected the owner's claims that he relied on others, including a return to service entry made after an inspection of the airframe, and that it was the avionics facility that was at fault for not telling him the aircraft was unairworthy and thus exposing him to FAA enforcement action, saying "Neither of these issues excuses plaintiff's breach of the affirmative duty to ensure logbook entries had been made."

So, as the owner or operator of an aircraft, we are reminded that we have a responsibility to ensure that the proper maintenance entries are made in the logbooks that accurately and completely reflect maintenance performed and a return to service statement before we take off. In the court's characterization, it is an affirmative duty. Passively relying on someone else's representations, even from the one performing the maintenance work, is not enough to satisfy these regulatory obligations.

Kathy Yodice is an attorney with Yodice Associates in Washington, D.C., which provides legal counsel to AOPA and administers AOPA's legal services plan. She is an instrument-rated private pilot.