A recent opinion of the NTSB in an FAA enforcement case illustrates the sometimes convoluted concept of aircraft “airworthiness.”
The basic airworthiness rule for pilots is FAR 91.7: “(a) No person may operate a civil aircraft unless it is in an airworthy condition. (b) The pilot in command of a civil aircraft is responsible for determining whether that aircraft is in condition for safe flight. The pilot in command shall discontinue the flight when unairworthy mechanical, electrical, or structural conditions occur.”
The FARs do not define “airworthy condition” or “unairworthy.” Rather, this basic rule is elaborated by NTSB. “Longstanding board precedent holds that an aircraft is in an airworthy condition if it (1) conforms to its type certificate and applicable airworthiness directives, and (2) is in a condition for safe operation. Both parts of the standard must be met to conclude an aircraft is airworthy; therefore, ‘to prevail on an airworthiness charge, the [FAA] administrator need only prove the aircraft fails to meet one of the two [parts].’”
One of the quirks of NTSB’s elaboration is that most pilots have never seen the type certificate applicable to the aircraft he or she flies, nor are type certificates readily available to pilots. What makes this case interesting is that the NTSB’s opinion inexplicably only involves the second part of the airworthiness standard—i.e. in a condition for safe operation”—and does not deal with the requirement for type certificate conformity. So, in this case the board articulates a more reasonable rule for pilots. “A finding of violation based on the second part of the standard is appropriate if the weight of the evidence shows the pilot ‘knew or should have known’ that the aircraft was not in condition for safe operation.”
In this case the FAA charged a pilot with flying his Beechcraft Bonanza when it had a known electrical fault. As a result, the FAA ordered his private pilot certificate suspended for 90 days. The pilot appealed the suspension to the NTSB. At a hearing before an NTSB law judge, the pilot gave his account of the incident. He testified that during a departure from an airport (let’s call that the first airport), he noticed that the multifunction display in the cockpit begin to flicker. Being unable to resolve the flicker, he notified air traffic control of his problem, and diverted to a nearby airport (let’s call that the second airport). Things got worse. The airplane’s electrically operated landing gear and flaps would not extend normally. The pilot was successful in manually extending the gear, making a low pass over the field for ground observers to confirm that the gear was down, and then landed without further incident.
What happened next is a matter of some dispute. According to the pilot, after landing he had the local maintenance shop check things out. With the engine running, two mechanics visually inspected the engine compartment and the cockpit instruments. They could find nothing wrong. The pilot asked if it was safe to fly the airplane back to his nearby home base. He was told, “It’s a VFR day; there is no reason why you can’t make it.” Before taxiing for takeoff and during run-up he tried to replicate the electrical fault. Everything read normal. The pilot then flew the airplane to its home base (the third airport). At the home base, a director of maintenance and a mechanic performed three run-ups before replicating an electrical fault on the fourth run-up. Out of precaution, because of their inconclusive checks, they replaced the aircraft’s main alternator which they guessed could be the problem.
The second airport’s mechanics testified to a different version. In the presence of their director of maintenance, the two mechanics testified that while they didn’t specifically recall the pilot or his aircraft, they would never tell a customer an airplane was safe for return to service without generating documentation.
On this record, the law judge affirmed the FAA’s order of suspension. The pilot then appealed to the full five-member NTSB. The full board remanded the case back to the law judge for further proceedings. “The mere fact respondent ultimately had to have the alternator replaced does not conclusively establish the existence of an unsafe condition during the flight from the [second airport] to [the third airport], in view of evidence that the airplane’s electrical system functioned normally after startup on the ground at [the second airport] and that multiple troubleshooting attempts [at the third airport] were required before mechanics detected an electrical issue…. We therefore remand the case to the law judge for more explicit factual findings on the issue of whether, in fact, an unsafe condition persisted during the flight from [the second airport] to [the third airport].”
We will await the ultimate result of this case, but the decisions so far have a lot that is instructive.
John S. Yodice provides legal counsel to AOPA members through Pilot Protection Services.