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March 31, 2004

Another Low For The Plaintiff's Bar

A man fell down the escalator at an airport. See AP Article. The injury occurred after he was a passenger on a US Airways flight. During the flight, the passenger ordered a cocktail. The flight attendant served the passenger at least one alcoholic beverage on the flight. The flight arrived at its destination and the passenger disembarked. Shortly thereafter the passenger sustained his injury.

Now the passenger is suing US Airways alleging that they did not warn him about that the effects of the alcoholic beverage(s) he consumed are greater at night and that the airline is thus responsible for the passenger's injuries. How this is the US Airway's responsibility is beyond me. This passenger used poor judgment and drank more than he should have. He then fell down the escalator. In my book, the passenger is responsible for his injuries, not US Airways.

This is yet one more example of the Plaintiffs' Bar's continuing support of the "its always someone else's fault" mentality. By pursuing this passenger's meritless claim, they encourage this passenger's (and the general public's) refusal to take responsibility for his own consumption of alcohol and/or clumsiness. Apparently the Plaintiff's Bar is now taking the position that an airline has a duty to baby-sit those passengers who are legally allowed to consume alcohol, but apparently are not smart enough to take care of themselves after they have been drinking.

This type of litigation on behalf of the lowest common denominator almost always results in bad law. Hopefully the airline will vigorously defend against this claim and not even offer the typical "nuisance value" settlement. Although this would cost US Airways more money, which it probably cannot afford to spend, the principle here is probably worth it. I wish US Airways the best of luck.

Posted by Greg

March 30, 2004

Another "Drunk" Airline Pilot Bagged Prior to Flight

Reminiscient of the America West incident in August of last year, an Aloha Airlines first officer was barred from boarding an aircraft which he was scheduled to fly from Oakland, CA to Hawaii. See AP Article. The pilot allegedly blew a .182 on the breathalyzer, well beyond the state legal limit of .08 and the FAA limit of .04. The pilot was then charged with intent to operate an aircraft while under the influence of alcohol.

Hopefully this won't become a TSA issue. The current system did its job and identified and detained the pilot before he could put passengers at risk. However, if the TSA decides to broaden its reach, I suppose the TSA could decide they need to set up separate "pilot" lines for screening. Then, not only will all metal objects and shoes have to be removed, but the crew would also have to pass a breathalyzer test. That would make about as much sense as taking off your shoes.

Unfortunately, the article doesn't provide any further information regarding the pilot's activities in the preceding 12-24 hours, other than at some point consuming sufficient alcohol to result in the excessive BAC reading prior to flight. Thus, we don't know whether this was an example of excessive drinking the night before where alcohol still remained in his system, or if the pilot was actually drinking immediately prior to his flight. I am sure when this information is disclosed we will have a better idea of how/why this continues to be an issue for some pilots.

Not sure what would possess a pilot to risk his or her career in this manner, unless perhaps a drinking problem is present. Either way, this definitely qualifies in my book as another "stupid pilot trick".

Posted by Greg

March 29, 2004

Volunteer Pilot Organization Protection Act

Two identical bills, H.R. 1084 and S. 955, were recently introduced to the House and Senate, respectively. The bills, titled the Volunteer Pilot Organization Protection Act, are intended to amend the Volunteer Protection Act of 1997 to exempt from liability a nonprofit volunteer pilot organization that flies for public benefit, its staff members, and its volunteers for harm caused by a volunteer while flying, in furtherance of the purpose of the organization, an aircraft for which the volunteer was properly licensed and individually insured.

Unpaid volunteers for most nonprofit organizations are provided "Good Samaritan" protections under existing law. Unfortunately, volunteer pilots were not covered by the first Volunteer Protection Act, even though the pilots donate their time, skills, and their aircraft to help others. These bills would provide similar protections to volunteer pilots and their groups to allow them to continue providing valuable free services for the needy and for our communities.

The bills have been referred to the Senate and House Committees on the Judiciary. Please contact your legislators and encourage them to support these bills.

Posted by Greg

March 28, 2004

More Congressional Misperceptions Regarding Aviation Security

The Secure Existing Aviation Loopholes Act, H.R. 3798, was recently introduced by Congressman Markey (D-MA). The bill is intended to amend the Homeland Security Act of 2002 and is the latest attempt to address security issues within aviation using a poorly aimed shotgun approach. In addition to requiring additional security measures for air cargo operations, the bill also has other requirements applicable to aviation in general.

With respect to air cargo, the bill requires that the Secretary of the Department of Homeland Security establish a system for inspecting or screening all cargo that is to be transported in a "passenger aircraft". The costs of activities and services for cargo screening would supposedly be paid for by a cargo security fee that the bill establishes for that purpose. The bill further requires that all foreign air carriers, charter and all-cargo flights have a Federal Air Marshal on board.

The bill would expand to "all passenger aircraft" the requirement to secure the cockpit door that is currently limited to Part 121 air carriers. It also incudes language requiring the Secretary of the Department of Homeland Security to establish no-fly zones around sensitive nuclear and chemical facilites and to complete vulnerability assessments of all airports serving general aviation aircraft.

Unfortunately, the bill is a prime example of legislation aimed at aviation operations that legislators do not understand. The bill does not define "passenger aircraft". Thus, as written, the language could be broadly construed to include both Part 121 and Part 135 air carriers. However, Part 135 operators rarely carry both passengers and cargo on the same trip. Application of the bill's requirements to Part 135 operators and others operating "passenger aircraft" would result in onerous costs and procedural burdens to address perceived problems that seldom exists in Part 135 operations or other general aviation operations. Along with the additional requirements beyond air cargo operations, the bill is another example of knee-jerk legislation in the absence of any credible, identifiable threat.

Fortunately, the bill has been referred to both the Committee on Transportation and Infrastructue and the Committee on Ways and Means. Hopefully it will remain in either or both of those committees until it can be rewritten to eliminate the unreasonable requirements or, better yet, to simply die a slow death without ever receiving a vote.

Posted by Greg

March 26, 2004

New Field Approval Advisory Circular Released

The FAA released a new advisory circular (AC) that explains the process and procedure to be used in obtaining a field approval for a type certificated aircraft. AC 43-210, "Standardized Procedures for Requesting Field Approval of Data, Major Alterations, and Repairs", describes the procedures for obtaining a field approval including, submission of data supporting the alteration or repair and the purpose and uses of the Aircraft Flight Manual Supplements (AFMS) and Instructions for Continued Airworthiness (ICA). A sample Compliance Checklist and instructions for completing the Field Approval Checklist are also included.

The new AC removes some of the confusion and inconsistency that has existed with respect to the field approval process and should help standardize the methods and procedures for obtaining field approvals. The AC is a must read for anyone planning on using the field approval process in the future.

Posted by Greg

March 25, 2004

Stupid Pilot Tricks

A recent FAA enforcement action provides another example of what I like to refer to as a "stupid pilot trick". The case arose from a pilot's execution of three low passes at an airstrip with a snow covered runway being used by snowmobilers. According to the snowmobilers, the aircraft flew within several feet of them and was close enough for the snowmobilers to view the pilot's face which they said appeared to be "smirking" at them. The snowmobilers believed that the pilot was trying to scare them.

Well, as you might imagine, the snowmobilers did not appreciate the pilot's low passes and promptly informed the FAA of the incident. An enforcement action followed. The FAA charged the pilot with a violation of FAR 91.119(c) which provides that, except when necessary for takeoff or landing, no person may operate an aircraft over other than congested areas at an altitude less than 500 feet from the surface. In sparsely populated areas, operations must be more than 500 feet from any person, vessel, vehicle, or structure. The FAA also charged him with violation of FAR 91.13(a) which prohibits careless or reckless conduct that potentially endangers the life or property of another. The pilot was specifically charged with recklessness.

At the NTSB hearing, the law judge held that the pilot made three low passes over the airstrip, that the first pass was typical, and that the second pass more than enough to confirm that the runway was safe for landing. However, by making a third pass over a runway that had too much snow for an aircraft equipped with wheels, such as the pilot's aircraft, and then not landing even though the runway was clear of all obstacles during that last pass, the law judge determined that the pilot's low passes below 500 feet were not intended for landing.

The law judge upheld the FAA's 180 day suspension of the pilot's certificate. The moral of the story: No matter how much you may be tempted to do a "watch this" maneuver (usually something less than safe to impress someone else and often a violation of the FAR's), don't do it. In hindsight, I doubt that the pilot in this case feels his low passes were worth the 180 day suspension he received. When the "watch this" urge strikes, resist the temptation. Fly safe and fly smart.

Posted by Greg

March 23, 2004

The Pilot Is Responsible For FAR Compliance

What happens when a pilot carries passengers or property on behalf of an employer when the employer does not have an air carrier certificate, but receives "goodwill" and "gas money" in exchange for the flights flown by its employee? Well, if the FAA finds out about it, in all likelihood the FAA will take action against the pilot's certificate alleging a violations of FAR's 119.33(a) (2) and (3) and, if the pilot only holds a private pilot certificate, FAR 61.113(a). Suspension or revocation could follow if the FAA is successful.

NTSB cases such as Administrator v. Murray have held that a pilot does not have to receive compensation directly and that goodwill can be a form of compensation. Although the pilot may argue that the employer specifically told the pilot that no compensation was being charged and that the flight was not a commercial flight, if the facts show that the pilot "knew or should have known" that the flight was for compensation or hire, the pilot will be held accountable. See Administrator v. Croy and Rich. In addition to the pilot, the employer/operator will likely also face civil penalties.

If you are a pilot and you are carrying passengers or property on behalf of an employer, you have a responsibility to ask questions and determine in your own mind whether the flights can be accomplished in compliance with the FAR's. Compliance with the FAR's is the pilot's responsibility. If you do not receive satisfactory information from your employer and fly the passengers or property anyway, your pilot certificate, and potentially your future career aspirations, could be in jeopardy.

Don't let this happen to you. Fly safe and fly smart.

Posted by Greg

March 22, 2004

TFR's and Flight Service Briefings

I was recently asked whether a pilot should call flight service and obtain a briefing for every flight. The example was given of a short flight across town from Minneapolis Crystal (KMIC) to Minneapolis Flying Cloud (KFCM). My advice is "YES"!

Since 9/11, temporary flight restrictions ("TFR's") pop up in multiple locations throughout the country. Sporting events, visits by national leaders, other events and "sensitive locations" result in numerous TFR's. Although some of the TFR's have been anything but "temporary", by and large many of the TFR's have been of limited duration.

One of the biggest problems with the TFR's, other than being inconvenient and of questionable need and benefit, is that they come and go with little prior notice. The other issue has been trying to actually interpret a NOTAM creating a TFR with respect to a sectional chart in order to figure out exactly where the TFR is located. The FAA has only recently done a better job of providing advance notice of pending TFR's and graphical listing of TFR's. Organizations such as AOPA and EAA have also stepped in and assisted in providing notice and graphical representations of the TFR's.

The nature of the TFR's and the manner in which they are being disseminated require that a conservative, prudent pilot contact flight service for all flights to determine whether any TFR's affect the intended route of flight. Failure to obtain this critical information can result in a close-up inspection of one or more of our nation's fighter aircraft and/or an extended session of hangar-flying while your airman certificate is suspended. Don't let this happen to you. Fly safe and fly smart.

Posted by Greg

March 18, 2004

Obtaining Aircraft Records From the FAA

Did you know that the FAA will provide you with copies of registration and airworthiness records for any aircraft registered in the United States. An aircraft's registration history will include such documents as applications for aircraft registration, evidence of ownership, security agreements, mechanics liens, lien releases, leases, lease terminations, and N Number Changes. The Airworthiness portion of an aircraft's file will contain such documents as applications for airworthiness, copies of airworthiness certificates, major repair and alteration reports, and related items.

You can request these records in either paper format or on CD-Rom directly from the Aircraft Registration Branch by letter, by fax to 405-954-3548, or online, although the last time I checked the online site was not available. The mailing address is FAA, Aircraft Registration Branch, AFS-750, PO Box 25504, Oklahoma City, OK 73125.

The fees for paper format include a $2.00 Search Fee, charged for each aircraft record requested, $0.25 for photocopy of first page of records on paper, and $0.05 for each successive paper page. An average paper record has 76 pages. Additionally, a $2.00 is charged if the record must be recalled from Federal Storage and if you need the record certified, a $3.00 fee is added.

If a CD-Rom is requested, you will receive one aircraft file per CD. The fee for CD format is $5.00 per CD ROM and, as with paper, if you need the record certified, a $3.00 fee is added. Whether paper or CD, you will receive a billing letter with the records. If you need further information, you can check out the FAA Registry website.

Posted by Greg

March 17, 2004

Aircraft Purchase Agreements Are a Must

It always surprises me when a potential aircraft buyer is unsure of whether he or she should use a purchase agreement when buying an aircraft. Most of these individuals have purchased homes and no doubt used a purchase agreement in such transactions. In fact, I don't know of anyone who has purchased a home and not used a written purchase agreement. Although the law requires it, when you are spending the amount of money you do on a home, it just makes good sense.

Yet, many of these same individuals would spend the same amount of money to purchase an aircraft, and often times a great deal more money, without the protection of a written aircraft purchase agreement. Here again, the law requires a written agreement for the deal to be enforceable. But many potential aircraft purchasers don't make the connection or somehow convince themselves that a written purchase agreement isn't needed. In my legal and personal opinion, written aircraft purchase agreements should be used in almost every aircraft sale transaction. For more information, please read my article on aircraft purchase agreements.

Posted by Greg

March 16, 2004

FAA Seeks Comments For Existing FAR's You Would Like To Go Away

The FAA is requesting public comments to identify regulations that should be amended, simplified or removed. The purpose is to identify regulations that are no longer necessary, impose an undue burden or duplicate or conflict with other federal regulations. Comments will be compared with the FAA's regulatory and rulemaking agenda and then the FAA will supposedly adjust it regulatory priorities where applicable without abrogating any of its statutory responsibilities. When complete, the FAA will publish a summary of the comments received and, where appropriate, will state whether or how it may adjust its regulatory priorities.

The FAA is asking that commentators limit their comments to the three regulations they feel are most urgently in need of review and to list those three in the corresponding order of urgency/priority. Since FAR Parts 125 and 135 are already under review, any comments regarding those regulations should be submitted to that rulemaking committee.

If you would like to submit comments directly to the FAA using their website, click here and then click the "submissions/comments" button at the top of the page. Or via U.S.Mail to: Document Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW, Washington, DC 20590-0001. You need to identify the docket number FAA-2004-17168 at the beginning of your comments, and submit two copies of your comments. Also, mark your envelope as follows: RE: Docket No. FAA-2004-17168; Review of Existing Regulations-Request for Comments.

The deadline for submitting comments is May 25, 2004. For additional information, contact the FAA's Patrick Boyd at (202) 267-7320.

Posted by Greg

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