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June 30, 2010

D.C. Circuit Affirms NTSB's Rejection Of EAJA Fees When FAA Dismisses Its Complaint Before A Hearing

In what can only be described as a continuing erosion in the deterrent effect which the Equal Access to Justice Act was intended to provide, the D.C. Circuit Court of Appeals has affirmed an NTSB decision in which the Board rejected two airmens' EAJA fee requests after the FAA withdrew its complaints against them. For a discussion of the case and EAJA, please read my latest article on the subject here.

Posted by Greg

June 18, 2010

L-39 Pilot Found Guilty For "Carelessly And Recklessly" Buzzing Beach

According to an Article in the LA Times, the pilot of an L-39 warbird was convicted of carelessly and operating the aircraft when he buzzed the Santa Monica Pier. The prosecution alleged that the pilot flew the L-39 along the shore at less than 100 feet, creating a wake on the ocean and close enough to a lifeguard stand for the lifeguard to feel the heat of engine exhaust. Then, just before the L-39 would have hit the Santa Monica Pier, the L-39 initiated a steep spiraling climb with smoke streaming from the tail. Apparently the flight was a promotion stunt for a movie being produced by the pilot.

Shortly after the flight, the FAA revoked the pilot's airman certificates. However, at the time of the trial, the pilot had regained his pilot certificate following the required one-year waiting period after revocation. (Another example of "speedy" justice).

In addition to the testimony of witnesses, video of the flight was also received as evidence in the case showing the aircraft's position and maneuvers. The jury found the pilot guilty of recklessly operating an aircraft, based upon a section of the state public utilities code intended to protect life and property from careless and reckless pilots. The pilot has not yet been sentenced, but the misdemeanor conviction carries a maximum sentence of six months in jail and a $1,000 fine.

This is yet another example of the growing trend of prosecuting authorities charging pilots with crimes for their conduct in operating an aircraft. Rather than simply risking the wrath of the FAA and certificate action, pilots now also risk prosecution for their conduct. Unfortunately, given the current political and economic climates, I fear this will only get worse.

Posted by Greg

June 14, 2010

Navigating The Rules And Regulations For Water Landing Areas

Now that summer is here, seaplane operations are in full swing. If you are looking to trade wheels for floats, not only will you need to add water take-off and landing skills to your aviation repertoire, but you will also need to familiarize yourself with additional regulations that govern the water landing sites you will be visiting.

As pilots, we all know that the Federal Aviation Regulations ("FARs") govern our operation of aircraft. The FARs also regulate most land-based airports. However, that isn't the case with water landing areas. The regulations that govern a water landing area are created and enforced by the governmental body or agency that controls that particular water landing area. The controlling agency may be the government (e.g. federal state, county, city, municipality, or township) or a private party, depending upon the body of water.

What does this mean for a seaplane pilot? Well, as the pilot-in-command and operator of your aircraft, you will be responsible for complying with the regulations that are applicable to your chosen water landing area. That means you will need to determine what agency governs and what regulations, if any, the agency has set for seaplane operations. Given the various agencies, that could be quite a task.

Fortunately, the Seaplane Pilots Association ("SPA")and its members have already done much of this legwork and compiled the information in their "Water Landing Directory." You can order a copy from the SPA on their website. The cost is $25.00 for SPA members and $50.00 for non-members. Although a prudent seaplane pilot will always confirm the applicable information prior to a flight, the "Water Landing Directory" certainly makes that task easier and more efficient.

Posted by Greg

June 11, 2010

NTSB Issues Charitable Flying Safety Recommendations To Air Care Alliance

On June 9, 2010, the NTSB issued Safety Recommendations A-10-102 through -104 to the Air Care Alliance ("ACA") requesting the ACA to take actions to enhance the safety of charitable flying. The recommendations address "verification of pilot currency; passenger awareness of operating standards; and the need for dissemination of safety guidance, information about best practices, and training material for pilots and organizations providing charitable medical transport flights." These recommendations were derived from the NTSB's investigation of four fatal aircraft accidents involving charitable flight organizations who are ACA members.

Specifically, the NTSB recommends that the ACA:
  • Require voluntary pilot organizations to verify pilot currency before every flight. (A-10-102)

  • Require that voluntary pilot organizations inform passengers, at the time of inquiry about a flight, that the charitable medical flight would not be conducted under the same standards that apply to a commercial flight (such as under FAR Part 121 or Part 135). (A-10-103)

  • In conjunction with your affiliate organizations and other charitable medical transport organizations, develop, disseminate, and require all voluntary pilot organizations to implement written safety guidance, best practices, and training material for volunteer pilots who operate charitable patient transport flights under FAR Part 91. The information should address, at a minimum, aeronautical decision-making; proper pre-flight planning; pilot qualification, training, and currency; and self-induced pressure. (A-10-104)

These recommendations don't really involve any issues that haven't already been discussed in the charitable flying community. However, the fact that the recommendations are made to the ACA is unusual since ACA is merely an organization whose members are involved in charitable flying. ACA does not facilitate or conduct specific charitable flight operations. Rather, it exists to support and promote charitable flying. Additionally, I'm not sure that the ACA is in a position to, or has the authority to, implement these recommendations. I think it would make more sense to direct these recommendations to the organizations engaged in charitable flight operations.

But, since compliance with the NTSB safety recommendations isn't mandatory, maybe it doesn't matter. Maybe the NTSB felt that issuing the recommendations to the ACA was the best way to get the various organizations further engaged in discussing these issues. Since the NTSB asks the ACA to submit an initial response within 90 days addressing the actions the ACA has taken or intends to take to implement the NTSB's recommendations, maybe we will find out at that time.

Posted by Greg

June 08, 2010

Is A Maintenance Manual A "Part" Of A Helicopter Under The General Aviation Revitalization Act?

In a recent decision by the California Court of Appeals, the Court ruled that the maintenance manual of a Bell 47D1 helicopter was not a "part" of the helicopter for purposes of the General Aviation Revitalization Act ("GARA"). In Rogers v. Bell Helicopter Textron, Inc., the plaintiff was injured in a crash and subsequently sued Bell Helicopter alleging that the helicopter's maintenance manual was defective because it improperly instructed on balancing the helicopterís tail rotor blades. Although the helicopter had been in operation since 1951, the maintenance manual for the helicopter was issued in 1969 and was last revised in 1975. Bell filed a motion to exclude any evidence of an allegedly defective maintenance manual based upon GARA.

Under GARA, an injured party may not sue a manufacturer for injuries sustained in an aircraft accident arising from an allegedly defective part unless the action is initiated within 18 years: (1) from the date the aircraft was delivered, for any part that was "originally in" the aircraft; (2) from "the date of the addition," for any part that was "added to" the aircraft; and (3) from "the date of completion of the replacement," for any part that "replaced another . . . part" of the aircraft. The trial court determined that the maintenance manual was a part of the helicopter and since the last revision to the manual occurred more than 18 years ago, any claim based upon the manual was barred by GARA.

On appeal, the plaintiff argued that the maintenance manual was not a "part" because it was not required to be sold with the aircraft or even be inside the aircraft, as opposed to a flight manual, which is required to be sold with the aircraft and kept in the aircraft for use by the pilot in operating the aircraft. The Court agreed, finding that no regulation required delivery of the maintenance manual with a helicopter that was manufactured in the 1950's. The Court also relied upon other similar cases observing that the federal regulations do not require a maintenance manual to be onboard the aircraft; GARA states that a replacement part must replace a part "originally in" or "added to the aircraft," and a maintenance manual was not a "part" "originally in" or "added to" an aircraft; and a maintenance manual applies to different aircraft models, is used by the mechanic for troubleshooting and repairing the aircraft, not for operation of the aircraft.

This case is somewhat unique in that the age of the helicopter precludes the application of FAR 21.50(b) which requires "[t]he holder of a design approval, including either the type certificate or supplemental type certificate for an aircraft, aircraft engine, or propeller for which application was made after January 28, 1981, shall furnish at least one set of complete Instructions for Continued Airworthiness, to the owner of each type aircraft, aircraft engine, or propeller upon its delivery, or upon issuance of the first standard airworthiness certificate for the affected aircraft, whichever occurs later."

It is also one example of creative pleading by plaintiffs to avoid the time limitations imposed by GARA. Rather than asserting a claim that the helicopter itself was defective, a claim clearly barred by GARA's 18 year statute of repose, the plaintiff asserted that the helicopter's maintenance manual was defective. Although the Court of Appeals allowed the plaintiff's claim to proceed, I would expect that Bell would appeal the decision to the California Supreme Court for further review of whether the maintenance manual is a "part" of the helicopter.

Posted by Greg

June 03, 2010

Pilot Of Crashed Ultralight Arrested For Flying While Intoxicated

According to a recent article, a Minnesota ultralight pilot was arrested after he crashed his ultralight into a lake. The police suspected that the pilot was operating the aircraft while under the influence of alcohol. Under Minnesota Statute 360.752 a pilot convicted of operating an aircraft while under the influence of alcohol is guilty of a gross misdemeanor and could be subject to imprisonment and payment of a fine. The local city or county attorney will likely prosecute the pilot for this offense. Does this mean that the FAA will get involved? Not necessarily.

First, it is unclear from the article whether the aircraft was, in fact, an ultralight since the article indicates that a passenger was not injured in the crash (FAR 103.1 defines an ultralight as being used or intended to be used by a single occupant). If we assume that the aircraft was an ultralight aircraft, under FAR 103.7, neither an airman nor a medical certificate is required to operate an ultralight aircraft. Thus, the arrested pilot wouldn't need to have had any certificates to operate the aircraft. As a result, the pilot may not have any certificates for the FAA to revoke.

If the pilot does have an airman or medical certificate, it is almost certain that the the FAA will revoke the airman certificate under FARs 91.17(a) (no person may act as a crewmember of an aircraft while under the influence) and 91.13(a) (careless and reckless) and will revoke the medical certificate under 67.307(a) (substance dependence or substance abuse disqualifies a person from holding a third-class medical certificate). If the pilot does not have an airman or medical certificate, the FAA could still pursue a civil penalty action against the pilot for violations of FARs 91.17(a) and 91.13(a).

Unfortunately, the limited facts in the article make it difficult to predict whether the FAA will actually get involved and, if so, exactly what action it might take. However, what is certain is that the pilot will need the help of a criminal defense attorney, and quite possibly an aviation attorney, to defend himself and to protect his rights.

Posted by Greg

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