John S. Yodice is the general counsel for AOPA.
Every pilot knows that an aircraft must be airworthy to be flown (that is except under limited circumstances, pursuant to a ferry permit or other FAA authorization). FAR 91.7(a) requires that, "no person may operate a civil aircraft unless it is in an airworthy condition." Subsection (b) of the same section provides that the pilot in command [PIC] of an aircraft is responsible for determining that the aircraft is in a condition for safe flight, and that the PIC must discontinue the flight when the aircraft encounters unairworthy mechanical, electrical, or structural conditions.
What is not well known is the precise meaning of the words airworthy or unairworthy. The regulations do not define them.
However, over the years by FAA interpretation and NTSB decisions, the standard for airworthiness has come to consist 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 FAA and NTSB have 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 sometimes 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 has also held that small, insignificant deviations will not render an aircraft unairworthy.
This recent FAA enforcement case gives us the opportunity to review the regulation and its interpretation. The captain of a Gulfstream IV aircraft, when making an approach to landing, noticed that the aircraft's landing gear indicator light did not illuminate. He notified ATC and asked the controllers to visually check the landing gear. The gear appeared to be down. Throughout the event and the eventual landing, the captain was getting guidance from an experienced A&P mechanic on the ground, troubleshooting the problem. The captain proceeded to a successful landing, and after landing, the captain conferred with the mechanic about safety wiring and pinning the landing gear in place so that the captain could continue his planned flight to his destination. The mechanic assisted the captain in determining that safety wiring and pinning the landing gear in place would be safe for the trip.
The FAA disagreed. The FAA ordered a 90-day suspension of the captain's ATP certificate. The FAA conceded that the operation of the aircraft was ultimately safe, but that the condition of the landing gear brought the aircraft out of conformance with its type certificate requirements. The FAA alleged that the operation of the aircraft with the landing gear wired and pinned in a down position, in the absence of a ferry permit, violated FAR 91.7, as well as 91.13(a) ("careless or reckless"). The captain appealed the suspension to the NTSB. He won his case after a hearing before an NTSB law judge, and he won on the FAA's appeal to the full board.
The law judge was impressed that the captain had proceeded cautiously and obtained verification from experts that the aircraft was airworthy, despite the failure of the landing gear light and the fact that the captain had used gear pins to secure the landing gear. In particular, the law judge found that the problem with the landing gear light arose out of a fairly common discrepancy with the aircraft's cannon plug. The law judge determined that the failure of the indicator light to illuminate did not adversely affect the safety of the aircraft because the aircraft was equipped with two other types of warnings (an additional auditory warning and a visual warning) that would indicate that the landing gear was failing to deploy. The judge dismissed the FAA complaint.
The full board affirmed the law judge, but on a slightly different and narrower ground. The board held that the FAA had not proved its case (the FAA has the burden of proof in these enforcement cases). The FAA did not produce the type certificate into evidence, but rather only the type certificate data sheet along with excerpts from the airplane flight manual, the maintenance manual, and the Gulfstream master minimum equipment list. None of these exhibits, said the board, include a requirement that the landing gear be retractable. None of them expressly preclude operation of the aircraft with the landing gear in a pinned position. A failure of proof.
The board was careful to narrow its opinion. "We emphasize that this opinion is limited to the record on this specific case, and we do not seek to imply or suggest that we condone [the captain's] actions. We are confident that, had the [FAA] administrator's counsel introduced evidence concerning the actual type certificate with the type design that identified retractable landing gear as a major system or component, the administrator would have met her burden of proof. Indeed, we believe [the captain] should have either grounded the aircraft until it was repaired, ensured that the minimum equipment list allowed for the operation of the aircraft without retractable landing gear, or obtained a ferry permit before continuing the flight."
The concept of airworthiness continues to be a shadowy one, incorporating as it does, the presumed knowledge on the part of pilots of an aircraft's type certificate. We hope that the FAA will enforce FAR 91.7 reasonably, and pilots will comply conscientiously with our universal concern about safety.