Aviation Law Briefing : Southeastern U.S. Aviation Lawyers & Attorneys in Mt. Pleasant SC for Defense of Airlines, Pilots and Aircraft Operators

The FAA is serious about reducing DUIs. The application for a medical certificate now asks for information about an arrest for DUI, even if there was never a conviction. NTSB opinions show: 1) an airman's alleged misunderstanding of their duty to report a DUI can still result in a revocation of all the airman's flying and medical certificates; and 2) in some circumstances the FAA may be allowed to revoke certificates as a result of a DUI, even if the FAA delays investigating the DUI such that it is considered "stale" under the stale complaint rule.

The Application for Airmen Medical Certificate (FAA Form 8500-8), section 18(v), asks applicants to state whether they have ever been "arrested and/or convicted (which may include paying a fine, or forfeiting bond or collateral) of an offense involving driving while intoxicated by, while impaired by, or while under the influence of alcohol or a drug . . . ."

Airmen have incorrectly assumed that if they were not convicted, then they do not have to answer "yes" to question 18(v) (click here for a list of reportable DUI actions as listed on the FAA website). In Administrator v. Domenicone, the FAA/NTSB heard a case where a Naval officer claimed to be mistaken in his interpretation of question 18(v). The court, after hearing the evidence and determining the credibility of the witness stated, "[i[tem 18(v) is stated in plain English. No literate person could reasonably misunderstand it. The Respondent does not claim to be illiterate, only mistaken." The court further stated, "I find that his 'no' answer to Item 18(v) was knowingly and intentionally false. I find that he answered no not because he did not understand the question, but because he did not think his answer would become an issue since he had not been convicted of DUI . . . ." (emphasis added). Finally, the court referred to Administrator v. Bodovinitz, which held, "revocation for intentional falsification of an application for a medical certificate as appropriate for all airman certificates held by the Respondent, not just his medical certificate." With that, the court not only revoked his medical certificate, but also all of his other airman certificates.

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

Pilots are always required to “see and avoid” other aircraft. In congested airspace, pilots know they must remain extremely vigilant to avoid a mid-air collision. In uncongested airspace the threat of a mid air collision may seem more remote. In either airspace, the legal responsibility to see and avoid other aircraft is the same.

FAR Part 91.113(b) states, “[w]hen weather conditions permit, regardless of whether an operation is conducted under instrument flight rules or visual flight rules, vigilance shall be maintained by each person operating an aircraft so as to see and avoid other aircraft. When a rule of this section gives another aircraft the right-of-way, the pilot shall give way to that aircraft and may not pass over, under, or ahead of it unless well clear.” This is the basis for the VFR see and avoid rule--failure to comply can lead to FAA sanctions including suspension or revocation of your license.

In Administrator v. Roderick, a helicopter and Cessna 185 collided in flight near Denali, Alaska. The Cessna 185 pilot received a 60 day suspension for failure to see and avoid the helicopter. The pilot stated he did not see the helicopter until the last minute but this testimony was no defense. The Roderick court cited Administrator v. Arellano stating, “[b]oard precedent unequivocally establishes that a pilot need not be aware that he has flown impermissibly close to another aircraft in order to be found to have violated [the FAR]” (emphasis added).

In the skies near Charleston, the rules remain the same. The coastline from Beaufort to Myrtle Beach is a spectacular area to fly, seemingly uncongested. But it is also an area with potential for mid air collisions. This area contains Military Training Routes, or “low-level” routes, including “VR-1041” (see the map to the right). Military aircraft fly these routes in good and bad weather at altitudes as low as 300 feet above ground level and at speeds in excess of 400 miles per hour. (Other low level routes are IR-35 and IR-36 which are also shown at right.) This route also contains several military airports, international airports and smaller civil airfields within several miles of the coast. Though the area may seem uncongested, there are still numerous threats for mid air collision. Your safety, and your compliance with FAR Part 91.113(b), mandates maintenance of a vigilant scan for other aircraft.
 

• Email This
• Print
• Comments
• Trackbacks

Airworthiness is a complex term in the flying world. Some pilots are taught to check for an airworthiness certificate as part of a preflight check. But airworthiness means so much more. Although you may have an airworthiness certificate, your aircraft may actually be unairworthy. For example, there may be a problem with the aircraft that you discover on a walkaround that makes the aircraft unairworthy. Prior to each flight, we are taught to perform a “walkaround” where we literally walk around the exterior of the airplane we are about to fly and make sure that everything on the exterior of the aircraft is operating as it should be. You may find something abnormal during a walkaround which may make the aircraft legally unairworthy.

In Administrator v. Bell, an airline captain received a fourteen day suspension of his Airline Transport Pilot certificate for failure to discover duct tape that was covering pitot tubes and static ports during a preflight inspection of a Convair 440. During this nighttime walkaround, he utilized a flashlight, but unfortunately did not see the duct tape. On takeoff roll, the crew noted a lack of an airspeed indication, however the captain decided to continue the takeoff, prepare for an immediate return to the departure airfield, and land. After landing, the crew discovered that ground personnel had placed duct tape on the pitot tubes and static ports prior to washing the airplane. The court did not question the captain’s decision to continue the takeoff, but did determine that the captain’s failure to see the duct tape constituted operating the aircraft in an unairworthy condition. The court stated,

The aircraft is certificated to require that they have operating airspeed indications, required to have an operating pitot static source; and therefore, since it did not have that at the time it was being operated, it was being operated outside its certification parameters. . . . If the aircraft is operated outside the parameters under which it is certificated, even though it is flyable, it is not airworthy. Flyability does not mean airworthiness for the purposes of the regulation.

I think this quote highlights a key point in the difference between how pilots and lawyers may use the term “airworthy.” Although this airplane flew, and landed without injury to anyone, that does not mean it was airworthy. In this case, not all of the airplane’s certificated equipment was operable and therefore it was operated outside its certification parameters (there are procedures in place to get FAA approval to legally fly an aircraft without all of the equipment functioning, but that is a complicated legal topic for a different discussion). Generally, if a pilot flies an airplane, and all of the certificated equipment is not working, you may not be in compliance with the FAA requirement to operate aircraft in an airworthy condition. And this may lead to a suspension or revocation of your license.
 

• Email This
• Print
• Comments
• Trackbacks

Temporary Flight Restrictions ("TFR") are more frequent in certain years, like an election year, and are tough to keep track of especially if you let these restrictions drop out of your crosscheck. Despite the difficulty in tracking them, pilots must ensure they are aware of these flight restricted areas and ensure they do not inadvertently enter them. (An example of a TFR image is shown at left, a diagram of Tampa, FL airspace). As we approach another election year, there will be more and more flights of senior level government leaders that warrant the issuance of TFRs. Failure to adhere to TFRs can lead to FAA enforcement actions.

One particular NTSB decision deals with violating a TFR and a resulting charge of careless and reckless operations. In Sturgell v. Lackey, a helicopter pilot was found to be in violation of FAR Part 91.13(a), "careless and reckless operations" because of a penetration of a TFR. This case was interesting because it highlights the way a violation of a Federal Aviation Regulation ("FAR") may include a residual charge of careless and reckless operations. In this case Judge Geraghty stated,

With respect to a charge violation of 91.13 of the Regulations, I view it in the circumstances of this case as essentially a residual violation. The Board precedent is that once it is established in a case that there does exist operational violations, as is the instance here, the violation of Section 91.13 follows as a lesser included offense or a residual violation, and I view it that way. And as such, in accordance with Board precedent, the residual violation, or lesser included violation, does not in any way add to the sanction to be imposed in that particular case.

One of my favorite sites concerning TFRs is the Defense Internet NOTAM Service ("DINS") NOTAM site. This site is particularly useful for identifying Presidential NOTAM information. If you visit this site and click on the Presidential TFRs and ARTCC TFRs buttons, you get a good list of TFRs that you should be aware of. This site also gives you a chance to search for important information near a particular latitude/longitude as well as along a particular route of flight. Keep this site in mind as you prepare for cross country flights during an election year.

• Email This
• Print
• Comments
• Trackbacks

The Federal Aviation Administration released Information for Operators (InFO 10003) on April 26, 2010 discussing cockpit distractions. The article states that engaging in tasks not directly related to flight duties, "including using personal electronic devices (PED), constitutes a safety risk." The article specifically mentions the use of laptop computers and mobile telephones. In my opinion, this is probably fair warning from the FAA and I would expect those who allow themselves to be distracted from their primary duties while using computers or telephones will find themselves defending a careless and reckless claim. There are other cases that highlight the point that getting distracted from flying duties may lead to a careless and reckless claim.

In Hinson v. Croasdale, two Delta Airline pilots were held to be in violation of FAR Section 91.123(b) "Compliance with ATC clearances and instructions" and Section 91.13(a) "Careless and reckless operation." In this case, the Delta pilots became distracted as they were descending from Flight Level ("FL") 280 to FL 270 by two B-52s. The B-52s were maneuvering and the Delta pilots were watching them as they maneuvered. While distracted, the airline pilots inadvertently descended 600 feet below FL 270, and thereby deviated from the altitude clearance they were assigned. In this case, the NTSB affirmed the careless and reckless charges.

InFO 10003 discusses a few instances of cockpit distractions. One involves a Northwest flight that overflew its destination, an instance of a crewmember texting after push back, and a crewmembers telephone ringing during takeoff roll. New York Times writers Micheline Maynard and Matthew Wald discuss more of the allegations of distraction in their article "Off-Course Pilots Cite Computer Distraction." One distraction listed in that article concerns the use of a laptop computer while in flight and these types of distractions are specifically addressed in the InFO 10003.

There are even rumors of new laws being written to make the use of computers and phones illegal for airline crews. An article on the CBS website titled FAA to Airlines: Curb Cockpit Distractions, states:

Legislation pending before Congress to reauthorize FAA programs contains a provision that would bar flight crews from using personal electronic devices in the cockpit. The provision would give the ban the force of law, rather than guidance.

While the InFO 10003 sheet does not specifically state cockpit distractions and minor/momentary  deviations will lead to charges of careless and reckless operations, I believe they could. I also think the use of computers and phones could end up being considered careless and reckless even if there is no deviation from a clearance. I just don't think the issue of pilots becoming distracted in flight is going to be tolerated today especially in light of the recent media reports that suggest the aviation industry allows distractions in flight.

 

• Email This
• Print
• Comments
• Trackbacks

Mike Danko, an aviation lawyer in California, recently discussed an issue in his post, NTSB: Glass Cockpits Associated with Higher Rate of Fatal Accidents, concerning the use of glass cockpits and fatal accidents.

In Mike's post, he reports that the NTSB has recently issued a report that states in part that, "[s]tudy analyses of aircraft accident and activity data showed a decrease in total accident rates but an increase in fatal accident rates for the selected group of glass cockpit aircraft when compared to similar conventionally equipped aircraft during the study period. Overall, study analyses did not show a significant improvement in safety for the glass cockpit study group. " As Mike asks, why can this be?

One answer is:

"Risk Homeostasis theory suggests that, when given the opportunity, pilots will use a safety feature to enhance the aircraft's utility rather than enjoy the increased level of safety the feature could provide. In other words, pilots use the the glass cockpits to fly into conditions that they would otherwise avoid."

This may be true, but I think there is another reason that may contribute to accidents on aircraft with glass cockpits as well as Heads Up Displays ("HUD").

In my experience, there are some pilots who use glass cockpits/HUDs as a primary tool to fly aircraft in critical phases of flight without relying on basic flying fundamentals. It is easy to get used to relying on glass cockpits/HUDs as a primary source of flight information, but pilots should utilize basic flying fundamentals and then refine them through the use of glass cockpits/HUDs. For example, a pilot flying a crosswind landing needs to set up the landing as he or she would do for any crosswind landing and then refine their approach with the HUD.

In the instrument flying arena, many pilots have been taught to tune, identify and monitor navigation instruments in the terminal area and on approach. The introduction of glass cockpits may lull some pilots into a sense of security where they think they can rely on glass without backing it up. But again there is no substitute for the basic fundamentals of setting up an instrument approach.

There should be no doubt that glass cockpits/HUDs are a great tool, but they are no substitute for utilizing the fundamentals of basic/instrument flying and backing those fundamentals up with advanced technology like glass cockpits/HUDs.

• Email This
• Print
• Comments
• Trackbacks

Aviation Safety Action Program (ASAP) should be treated as a valuable safety tool to prevent accidents and mishaps, not as an evidentiary tool for enforcement proceedings. Limiting the use of ASAP data not only helps the NTSB and the FAA improve aviation safety (through the identification of safety related issues from aviation professionals) but it also encourages pilots to report any issues that may degrade aviation safety without fear of reprisal.

John Wiley, from Aviation Week, discussed the impact from two recent Federal Court rulings that could degrade the effect of the ASAP in his article, ASAP's Getting Zapped, According to Wiley, one Federal Judge wrote:

[T]here are many incentives for reporting to continue, not least of which is the future personal safety of the crew and passengers.

While this point may be true, the whole point of ASAP was to report information without subjecting the person reporting the data to being fired or having their license(s) suspended or revoked based on what they voluntarily reported. 

Safety information collected pursuant to a safety investigation, whether informally given via a written statement or a formal investigation, can be used in many ways. It can either be treated as confidential information pursuant to a safety investigation or it can be used in the prosecution of an individual or in a variety of other programs. To further the goals of aviation safety by utilizing lessons learned by professional aviators, the aviation industry should endeavor to make sure their programs are biased toward improving aviation safety, not toward judicial proceedings. Aviation safety depends on open and honest communications concerning lessons learned from prior mishaps. In my opinion, diluting the safeguards of ASAP will not promote aviation safety.

• Email This
• Print
• Comments
• Trackbacks

“Careless and reckless.” These words seem to be pretty serious, especially if they are used to describe a decision or an operation that a pilot undertook while flying an airplane. It would be nice to have a single definition of these terms that explains them fully, but a definition doesn’t help as much as looking at real examples that help illustrate what the FAA/NTSB have considered careless or reckless.

This post is the first in a series of articles where we look at what is considered a careless or reckless operation according to the FAA as defined by FAR 91.13.

Here we will look at a few factors that could lead a pilot to land at the wrong airport, a case from the NTSB showing the implications of landing at the wrong airport, and techniques to prevent such an occurrence from happening to you.

Let's consider a couple of factors that can cause confusion:

Proximity

Some runways are in close proximity to each other and have runways which are aligned in the same cardinal direction.

A local example is Sumter Municipal Airport and Shaw AFB, both of which are located in Sumter, SC. As many of you know, Shaw is home to the 20^th Fighter Wing, an organization that flies the F-16. What you may not know is that Shaw and Sumter Muni are only about 6 miles apart. As with so many airports located in the same region, the runways tend to point in the same direction because the average winds lead designers to build nearby runways in the same direction. Shaw AFB and Sumter Muni have runways pointing in almost the same direction (a Google image shows the relationship above). Years ago, while I was stationed at Shaw, a couple flying a light single engine airplane on a hot hazy day inadvertently landed at Shaw AFB (with a very young relative in the back seat). Though they thought they had landed at Sumter, they had mistakenly landed at Shaw and were subsequently met and briefly detained by the security police because of their unauthorized landing at a military airport. Close proximity of airfields to VFR pilots may cause confusion, but another example demonstrates a potentially confusing scenario for pilots flying IFR.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks