Gregory J. Reigel
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December 31, 2007

Airplanes Can Make People Act "Crazy"

After representing many clients in a wide range of aviation related cases, I have come to the conclusion over the years that airplanes can make people act "crazy." For a few examples of what I am talking about, please read my article on the subject here. Hopefully after reading the article, you will be able to recognize and avoid a few of the pitfalls and consequences suffered by some individuals who were well-intentioned, but who otherwise made some unwise decisions relating to airplanes.

Posted by Greg

December 14, 2007

Airline Pilot Mandatory Retirement Age Raised To 65

According to an FAA Press Release issued today, the President has signed The Fair Treatment for Experienced Pilots Act into law effective December 13, 2007 and eliminated the "Age 60 Rule" that had been in effect since 1959. Under the new law, pilots up to the age of 65 will be able to crew a domestic flight and, for international flights, one pilot may be up to age 65 provided the other pilot is under age 60, consistent with the November 2006 International Civil Aviation Organization (ICAO) standard.

The new law received near unanimous support from Congress and sailed through both the House and the Senate after it was stripped from the FAA funding bills that have been bogged down in both the House and Senate for quite some time. The legislation also averted a lengthy federal rule-making process that would otherwise have been required for the FAA to change the existing regulations. Although the law is not retroactive, airlines may rehire pilots who are under age 65 but who were forced to retire under the old Age 60 Rule. In light of the current pilot shortage faced by the airlines, it will be interesting to see how many pilots older than 60 the airlines actually re-hire.

Posted by Greg

December 13, 2007

4th Circuit Court Of Appeals Reverses District Court Ruling That Maintenance Manual Was

This case, Colgan Air, Incorporated v. Raytheon Aircraft Company, arose out of the August 26, 2003 crash of a Colgan Air Beech 1900 aircraft off the coast of Massachusetts shortly after takeoff. The aircraft was destroyed and the pilot and co-pilot were killed. Colgan leased the aircraft that crashed from Raytheon Aircraft Company. Immediately prior to the accident, Colgan’s mechanics installed a new elevator trim tab cable using the procedure outlined in the Raytheon maintenance manual for the Aircraft. Unfortunately, the trim tab cable was installed incorrectly such that the trim tabs operated in reverse.

In the aftermath of the accident, Colgan sued Raytheon alleging that several errors in the maintenance manual for the aircraft, which was created and published by Raytheon, caused the fatal crash. Raytheon filed a motion for summary judgment arguing that the Used Airliner Airplane Warranty, executed by Colgan as part of its lease of the aircraft, contained a waiver of rights, which precluded all of Colgan’s claims against Raytheon. Presuming for purposes of the summary judgment motion that the maintenance manual did contain defects that were the proximate cause of the crash, the district court granted Raytheon's motion and dismissed Colgan's claims against it.

The district court concluded the manual was "part of the aircraft" as a matter of law because: "(1) other courts have concluded that 'a product, such as an aircraft, and its maintenance or other operational manuals are a single, integrated product,'; (2) the FARs support the conclusion that an aircraft’s maintenance manual is an integrated part of the aircraft; and (3) the fact that Colgan may have purchased the maintenance manual in a separate transaction is immaterial to determining that a maintenance manual and an aircraft are a single product. As a result, the Used Airliner Airplane Warranty governed and Colgan's only warranty rights had expired ninety-days after its initial lease of the aircraft (before the time of the accident). The district court also held that the waiver language contained in the Used Airliner Airplane Warranty precluded Colgan's claims based on negligence or strict liability in tort. As you might imagine, Colgan appealed.

On appeal, the 4th Circuit Court of Appeals reversed the District Court. Initially, the 4th Circuit distinguished cases that specifically dealt with a flight manual, as opposed to a maintenance manual because "a maintenance manual is not sufficiently similar to a flight manual. A flight manual is used by the pilot and is 'necessary to operate the aircraft,' whereas a maintenance manual 'outline[s] procedures for the troubleshooting and repair of the aircraft' for the mechanic." The court also noted that "a maintenance manual, unlike a flight manual, can be used on multiple (albeit identical model) aircraft."

Next, the Court observed that FAR 43.13 allows aircraft to be maintained using the current manufacturer’s maintenance manual or Instructions for Continued Airworthiness prepared by the aircraft's manufacturer, "or other methods, techniques, and practices acceptable to the Administrator." As a result, the manufacturer's maintenance manual is not "essential" to maintaining an aircraft’s airworthiness under the FARs and thus, "the federal regulations do not support a conclusion that, as a matter of law, a maintenance manual is a component of an aircraft, nor do the regulations indicate that the two constitute a single, integrated product as a matter of law."

Finally, the Court concluded that an issue of fact existed as to whether the maintenance manual was provided to Colgan in connection with its lease of the aircraft and, ultimately, whether the parties intended and considered the maintenance manual to be "part of the aircraft" so as to make the Used Airliner Airplane Warranty applicable. Accordingly, the Court determined that summary judgment on this issue was inappropriate.

With respect to Colgan's express warranty argument, the Court concluded that the maintenance manual's statement (that if the user follows the instructions contained therein — specifically, the illustration in Chapter 27-30-04 — then the cables will not cross and the trim tabs will move properly), could lead a jury to reasonably find that in using the product as directed, the maintenance manual failed to perform as warranted, and thereby caused the accident. As a result, the Court determined that summary judgment was inappropriate on this issue because an issue of fact existed for the jury as to whether the statement constituted an express warranty.

I think the 4th Circuit did a nice job with its analysis of this case. I am not sure whether the district court simply misunderstood the issues or if, perhaps, the issue wasn't argued as clearly and concisely as it could have been. However, based upon the record presented to the district court, the 4th Circuit clearly understood that a flight manual can be distinguished from a maintenance manual, both from a practical and a regulatory perspective. Of course, the 4th Circuit's decision doesn't rule out the possibility that the facts presented at trial will ultimately support the conclusion that the maintenance manual was "part of the aircraft." However, at least this way the parties have their day in court and all of the facts will, hopefully, be presented.

Posted by Greg

December 11, 2007

China To Ratify Cape Town Convention On Aircraft Financing

According to a Forbes article, China has initiated the ratification process for its execution of the Cape Town Convention on aircraft financing. China believes this action will make U.S. aircraft and aircraft parts manufacturers more willing to sell their products in China and will encourage lenders to finance those products. The U.S. government confirmed China's ratification intentions and stated that the action "will reduce the risk in financing aircraft purchases, making less expensive financing terms available to Chinese airlines, thus making it easier to purchase US aircraft."

I think it is interesting, and quite accurate, that the U.S. references financing that is being provided to "Chinese airlines." After all, the airlines, transport category aircraft and parts manufacturers and the financiers of those aircraft and aircraft parts were the driving force behind, and the biggest beneficiaries of, the Cape Town Convention. For all of the other aircraft transactions that are subject to the Cape Town Convention, the Convention has simply added unnecessary procedures and costs to transactions that were, for the most part, adequately secured pre-Cape Town.

Posted by Greg

December 10, 2007

New Medical Examiner Order Effective

The FAA has replaced the Aviation Medical Examiner System Order (Order 8520.2E) with a completely revised FAA Order 8520.2F. The 1999 order was revised in order to be in compliance with the new Aviation Safety Directorate Order VS1100.2, Managing AVS Delegation Programs. Aviation medical examiners are required to be familiar with the contents of Order 8520.2F which is effective now.

Posted by Greg

December 05, 2007

DOT Changes Address And Migrates To Federal Document Management System

The DOT today published a Final Rule to update its addresses, change references from the Docket Management System to the Federal Docket Management System (FDMS), and remove obsolete information listed in FAA regulations as a result of these changes. Specifically, the Final Rule changes DOT's headquarters to 1200 New Jersey Avenue, SE., Washington, DC; implements DOTs migration to the government-wide electronic Federal Document Management System (FDMS) which replaces the old DOT Docket Management System (DMS); and it reflects closure of the DOT Transportation Branch Library.

The Final Rule amends FARs Parts 11, 13, 17, 36, 91, 139, 150, 193, 404, and 406 and is effective today. If you have any questions regarding the Final Rule or would like further information regarding the changes implemented by the Final Rule, you may contact Barbara Dinkins, Office of Rulemaking, ARM-210, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 493-4657; facsimile: (202) 267-5075; e-mail:

Posted by Greg

December 04, 2007

Removal Of An Aircraft's Passenger Seats Does Not Negate Requirement To Have Part 135 Certificate For Commercial Operations

The NTSB recently affirmed an ALJ's determination that an airman's removal of all of an aircraft's passenger seats did not exempt the airman from the requirement that he possess an air carrier certificate in order to carry cargo for compensation or hire. In Administrator v. Gorman, the FAA alleged that the airman, after being notified on multiple occasions that his cargo operations were in violation of FAR Parts 119 and 135, continued to carry cargo for compensation or hire at least 20 times.

The specific regulations allegedly violated by the airman included FARs 119.5(g) (prohibiting operating as a commercial operator without, or in violation of, an appropriate certificate and appropriate operations specifications), 119.23(b)(1) and (2) (requiring one who conducts non-common carriage or private carriage operations for compensation or hire, with airplanes having a passenger-seat configuration of less than 20 seats and a payload capacity of less than 6,000 pounds, to comply with Part 119, Subpart C, certification and operations specifications requirements, and Part 135 operations requirements), 119.33(b)(2) and (3) (prohibiting a person other than a direct air carrier from conducting any commercial cargo aircraft operation for compensation or hire under Part 121 or Part 135 unless that person obtains an operating certificate and operations specifications that prescribe the authorizations, limitations, and procedures under which each kind of operation must be conducted) and 135.293(a) and (b) (prohibiting a person from serving as a pilot unless, since the beginning of the 12th calendar month before that service, the pilot has passed a test on that pilot’s knowledge and a competency check in that class of aircraft).

Based upon the alleged violations, the FAA issued an emergency order revoking the airman's commercial pilot certificate and any other certificates held by the airman. The airman then appealed the order and a hearing was held. After the hearing, the ALJ determined that, despite multiple warnings from the FAA, the airman had engaged in cargo operations for compensation or hire without the appropriate air carrier certificate. As a result, the ALJ affirmed the FAA's order of revocation.

On appeal to the full NTSB, the airman did not deny that he operated the flights or that he had not complied with FARs 119 and 135. Rather, he argued that the regulations he allegedly violated were not applicable to his operations. According to the airman, the language in FAR 119.23(b) that "an airplane having a passenger seat configuration of less than 20 seats," did not include aircraft with "zero" passenger seats installed, such as "all-cargo" aircraft like those operated by the airman. He also argued that FAR Part 119 did not apply to his operations, given the ambiguity that he argued exists concerning “all-cargo” airplanes, in spite of the FAA's interpretation of FAR 119.23(b) to the contrary. The FAA responded that, "if someone removes all the seats, they now have a passenger-seat configuration of zero," and that zero passenger seats is still "less than 20." As a result, the regulation applied to the airman's "all-cargo" operations.

The Board initially observed that "we are bound by all validly adopted interpretations of laws and regulations that the Administrator carries out, unless we find that an interpretation is arbitrary, capricious, or otherwise not in accordance with law." It then deferred to the FAA's interpretation of the regulation and affirmed the ALJ's finding that the FAA's interpretation of the regulation was reasonable. The Board also noted the ALJ's observation that the airman's aircraft were type-certificated with passenger seats and his mere changing of the passenger-seat configuration to zero when he removed the passenger seats did not change the aircrafts' type certification for passenger seats.

Based upon the FAA's interpretation of the regulation, the Board agreed with the ALJ that the airman had violated the FARs as alleged by the FAA. With respect to the sanction of revocation, the Board concluded that revocation was appropriate where the airman "deliberately continued his commercial operations on at least 20 occasions, based on his insistence that he was right and the Administrator was wrong."

Although the airman's argument was interesting, and not without some merit, it wasn't enough to overcome the deference the NTSB is required to give the FAA's interpretations of the FARs. In order to win that battle, the airman would have had to show that the FAA's interpretation was unreasonable and arbitrary, capricious or contrary to law and precedent. Unfortunately, that is tough burden to meet.

Posted by Greg

December 03, 2007

FAA Maintains Percentage Rates For Random Drug And Alcohol Testing Of Safety-Sensitive Employees

In a Notice published today, the FAA stated "that the minimum random drug and alcohol testing percentage rates for the period January 1, 2008, through December 31, 2008, will remain at 25 percent of safety-sensitive employees for random drug testing and 10 percent of safety-sensitive employees for random alcohol testing." Since the reported random drug test positive rate for 2005 was less than 1.00% (it was actually 0.55%) and the minimum random alcohol test rate for 2005 was less than 0.50% (it was actually 0.08%) the FAA may continue the current rates for calendar year 2008.

For further information regarding the annual random testing percentage rates you should review FAR Part 121, appendix I, section V.C (for drug testing), and Part 121, appendix J, section III.C (for alcohol testing) or you may contact Mr. Jeffrey Stookey, Office of Aerospace Medicine, Drug Abatement Division, Program Analysis Branch (AAM-810), Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8442.

Posted by Greg

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