A recent legal decision reminds us that a pilot (or any other operator) is personally responsible to ensure that an aircraft on which any maintenance has been performed is appropriately signed off for return to service before the aircraft is operated. In this case, a pilot had all of his FAA airman certificates, including his airline transport pilot certificate, suspended for 60 days for violating this and related rules. The FAA originally sought a 150-day suspension.
Here are the facts. The pilot, who was director of operations for a private corporate jet operator, had a problem on takeoff in the jet. A cockpit warning light came on, indicating hot fuel temperature. The light went off when the pilot reduced power. As a precautionary measure, he opted to land at the closest airport with a maintenance facility equipped to address the issue. Maintenance personnel checked the problem and eventually installed a new component to the fuel control assembly. When the mechanics had completed their ground tests, they taxied the aircraft to the run-up area, where they completed engine run-ups. The pilot was then told by the mechanic, “OK, let’s head back to the ramp and I’ll get all the paperwork going and get you out of here as quick as we can.” After fueling and resupplying the aircraft and waiting about an hour, the pilot decided to depart—obviously satisfied that the problem had been resolved—for a hurried departure, and leaving a handwritten note saying, “Alex, please complete corrective action. Show ‘S/N off/on for parts.’ Thanks to you and [one of the mechanics]. Send all 3 copies to [operator’s maintenance personnel].” The pilot also left three carbon copies of an operator’s flight log sheet for the mechanics to complete and forward to the operator’s director of maintenance. The pilot kept a pink carbon copy, designated for accounting. On start-up and taxi for departure, the mechanics were nearby but made no attempt to stop or to signal the pilot that maintenance was incomplete. However, when a supervisor was informed that the aircraft had departed, he reacted in disbelief because they had not yet issued the airworthiness release. He considered the aircraft to be unairworthy and unsuccessfully tried to recall it. On the contrary, the pilot believed the aircraft had been repaired and returned to service by maintenance personnel because he was told that the repairs were finished with the run-up that was done. (Interestingly, the mechanic who worked on the aircraft testified at the later NTSB hearing that he documented his work on the work form before the aircraft departed.)
The FAA had a different view. It charged the pilot with multiple related violations of FARs 91.203(a)(1), 91.405(a) and (b), 91.407(a), and 91.13(a). The FAA order suspended all of the pilot’s airman certificates for 150 days. For our purposes here, FAR 91.405(b) is most relevant. It states that each owner or operator of an aircraft shall ensure maintenance personnel make entries in the aircraft maintenance records indicating the aircraft has been approved for return to service. The maintenance may have been completed, but according to the FAA (and later the NTSB law judge), that was not enough.
The pilot appealed the suspension to the NTSB. A hearing was held before an administrative law judge, who found the FAA charges valid. The pilot’s “failure to view the written return to service was a violation because he never ‘ensured’ the maintenance records would be completed.” The judge cited NTSB precedent “holding that a pilot-in-command could not simply rely on a mechanic’s statement for purposes of Sections 91.405 and 91.407.” Furthermore, maintenance personnel are not required to keep an aircraft from departing when they believe it is unairworthy. But, in mitigation—because the pilot took reasonable action when he first noticed the illuminated temperature indicator—the judge reduced the period of suspension from 150 days to 140 days.
On further appeal to the full NTSB, the board affirmed the law judge’s findings but concluded a 60-day suspension was more appropriate in view of the pilot’s efforts to address the problem. Nevertheless, the message is clear. An owner, pilot, or other operator must ensure that the appropriate maintenance records are made before an aircraft out of maintenance is operated.
Also important to note, although not directly involved in this case, FAR Part 43 provides that a pilot (who is not necessarily an FAA-certificated maintenance professional) may perform preventive maintenance on an aircraft owned or operated by him/her, and in doing so, must sign and record the preventive maintenance done—essentially approving and recording the return to service. Even though it is only preventive maintenance, the FAA will likely insist that all of this should be done before the aircraft is operated.
John S. Yodice provides legal counsel to AOPA members through Pilot Protection Services.