Aviation Law

Pilots must become “familiar with all available information concerning [the] flight”. Federal Aviation Regulation (FAR) § 91.103. These tips should help pilots increase their awareness of the legalities of flight. Remember, the FAA thinks of the pilot’s license as a privilege, and does not hesitate to hand out certificate suspensions to prove it.

 

  1. Always carry a NASA form. “Things happen”; just because you were not aware the President and joint chiefs were holding a meeting at a hotel ballroom directly under your flight path, does not matter to the F-16 pilot ordered to “escort” you back to the ground. Similarly, airline craft have inadvertently landed on the wrong runway. And for the minority of pilots, you might accidentally exceed 200 knots in a class B. Any number of mistakes might result in certificate action from the powers of authority. A NASA form is a compromise between the authorities and the little guy.

 

NASA form is colloquial for an Aviation Safety Reporting System (ASRS) report. In 1975 Congress asked the Federal Aviation Administration (FAA) to increase safety in aviation by collecting data on aviation related near-misses. NASA is the neutral third party that actually collects the data. This keeps identities confidential. To encourage reporting, the FAA grants pilots, mechanics, controllers, or aircrew immunity from certificate action on properly reported incidents.

Such immunity does not cover acts that are: (a) intentional, (b) criminal or incompetent, (c) a repeat violation. The report must also be filed within 10 days of the occurrence. Similarly, I advise clients to provide the form only to NASA, not to the FAA. The FAA only needs to know the form was filed on time. With the actual report in hand, the FAA may use it for an investigation.

Such immunity is also limited by certain situations. Flying into a Temporary Flight Restriction (TFR) environment is one of those scenarios. This happened to a frequent Aircraft Owners and Pilots Association (AOPA) writer and flight instructor when he neglected to ask for a weather “standard briefing” before flight. In such a case, even when a pilot files a NASA form, the FAA might charge them with violating not only FAR § 91.141 for entering the TFR, but FAR § 91.103 for failing to become familiar with all available information concerning the flight. Yet, a report can still be useful, if it is not the pilot’s fault. If the pilot requested the standard briefing but the briefer never mentioned the TFR, the NASA form still protects the pilot.

 

  1. Print out the standard briefing. One of the things that sets aviation apart from other methods of transportation is susceptibility to weather. The airplane is a delicate machine to be treated with respect. Even military craft which look like they could carve a hole through the earth are lost due to weather conditions. A pilot should be conservative flying in adverse weather. If not, the FAA may want to discuss with that pilot whether their flight was a violation of FAR § 91.103. Such scrutiny could result in having to do an FAA airman reexamination flight (“709 ride”) to demonstrate the pilot’s fitness to remain in possession of their certificate. Rather, if the pilot can show the FAA a printout of the weather briefing or obtain the recording from Lockheed Martin, the conversation can go much smoother. Also, pilots must remember to ask for the standard briefing, or the briefer might assume the pilot knows the information not asked for.

 

  1. Leave Engine, airframe, Prop, and Pilot logbooks at home. With few exceptions, no pilot is required by regulation to carry logbooks with them. Only FAR § 61.51(h) says logbooks must be carried by student pilots, sport pilots, and recreational pilots, in certain limited circumstances. But others including private, commercial, and transport pilots, licensed passengers, and mechanics should always leave the logbooks at home. Why? If the FAA or law enforcement wants to see them, regulations say the pilot must produce the logbooks, either now or later. When the logbooks are on one’s person, the inspection of logbooks takes place immediately. What if the pilot brought a passenger but forgot to update the logbook with a previous flight for currency? It could mean that unhappy passenger is walking home.

 

When a casually dressed, friendly, local FAA inspector approaches the aircraft and says, ‘Hi, I am from the FAA and I’m here to help’, that inspector is now duty bound to find something wrong if he or she can. If anything is wrong, a written invitation to an inquisition at the local FSDO may soon grace the pilot’s mailbox. On the other hand, if the logbook stayed home, the pilot gets a reasonable time to produce it. A reasonable time is not defined by regulation. But, in practice this refers to several days if not weeks. Here is another unfortunate example: an air crash occurred and the logbook burned up in the resulting fire. The insurance company could not verify whether the pilot was current at the time of the crash and wanted to deny the family’s insurance claim.

 

  1. Learn about ramp checks like any other dangerous situation. It is important for a pilot to gather wisdom about ramp check situations during their aviation career. For example, learn to ask purported FAA inspectors to show credentials. It is important to realize the existence of individuals who want to gain access to planes or pilots by fraud. And, do not let an inspector keep any documents. The inspector could forget to return them. If the FAA wants to keep any documents, a pilot is entitled to notice that such property may be seized, and an opportunity to be heard.

 

  1. 5. Limit liability wherever possible. Proper insurance is the first line of defense in almost any liability situation. Next, the liability limiting structure of an LLC, nonprofit, or C corporation ought to add additional peace of mind. It should also function as a barrier between a pilot’s personal assets and a claim. The structure also protects a pilot from personal liability for damages caused by co-owners or others who fly the pilot’s aircraft. Be aware that no corporate form helps protect a pilot from liability from his or her own negligence. While limited liability structures cannot always protect a pilot, it is indispensable in many situations and inexpensive to set up.

 

  1. Proactively avoid or substitute medicines. The FAA maintains a list of medicines it does not want pilots taking before takeoff. The list contains prescription drugs, but many over-the-counter drugs, as well. Some common cold medicines and nasal decongestants are on the list, for example. The full list is not published, but much of it is. A pilot can also call AOPA or EAA to inquire about specific medicines. If a pilot has been prescribed one of the forbidden medicines for regular use, they need to see an Aviation Medical Examiner (AME) about their options. Hopefully, the AME can work out an alternate medicinal regime that comports with the FAA’s expectations.

 

  1. Get to know an Aviation Medical Examiner. AMEs are medical doctors, usually in private practice and often with flying experience themselves. Some doctors can be the opposite and are not necessarily passionate about flying. Find a doctor who is willing to work with a minor condition. For example, if a health problem is ever a concern, pilots can make two appointments with their doctor. The first appointment is a regular ‘checkup’. If it becomes probable to the doctor during this regular checkup that the pilot may encounter problems passing the aviation medical portion of the second appointment, the pilot would simply cancel the second appointment. Otherwise, a negative aviation health checkup can disqualify the pilot for renewal indefinitely. If a failed medical is inevitable, the pilot may want to dispute the diagnosis of their medical condition. The pilot would then need an AME to concur in that appeal to the FAA or beyond.

Some may think that the new BasicMed aviation medical reform is the solution rather than getting to know an AME. This is not true. BasicMed is a qualification program that puts the whole process in the hands of the pilots’ regular primary care physician. But, only certain pilots actually take advantage of BasicMed. Generally, this program would only make sense for pilots over 40, who do not fly for hire or outside the country, and fly below 18,000 feet and 250 kias in airplanes weighing less than 6,000 pounds and with six or fewer seats. Even for these pilots, a third-class certification would be preferable if they can get it.

 

  1. Comply with all insurance and rental requirements. What the FAA does not regulate, the insurance company does. A pilot ought to discuss with the insurance agent at length any concerns. This applies to getting coverage and to renewing a policy. A pilot should be familiar with what the insurance company wants in return. For example, the regulations do not say pilots cannot fly over open water in a single engine aircraft. But the insurance company policy probably does say this. Pilots risk denial of any claim when they operate outside of these policy limits.

The same concern applies to renting. Fixed Base Operations (FBOs) and flight schools can have policies similar to or more restrictive than insurance companies. Some FBOs do not allow their planes to be landed on grass strips, for example. So, a renter’s insurance company and aircraft rental company would both have some say in how a pilot flies. Operating outside of these rules is risking denial of a claim.

 

  1. Keep the FAA informed. A pilot should update the FAA of any change in address or other basic information. If the FAA sends notices to an address on file, it is considered received. Often, deadlines begin to run from the date of supposed receipt of such notices. Time limits to appeal, or for pilots to respond to inquiries, are usually only 30 days. If no response is received, the FAA assumes the pilot has decided not to respond or has waived the right to do so. The agency can and may suspend a pilot certificate under such scenarios. It can even happen without the pilot knowing it. Hopefully, the logbooks are at home.

 

  1. Get to know an aviation attorney. A variety of situations prove that an aviation attorney’s advice and counsel is invaluable. From ramp checks or flight instruction scenarios to certificate actions and tax implications of aircraft ownership, the advice of counsel is useful. Referring an inspector to an aviation attorney also puts in an advocate as a buffer between one’s pilot certificate and any enforcers. Said attorney can also structure aircraft purchases, sales, maintenance or hangar contracts, employment contracts, exchanges, or anything else a pilot needs to stay legally fit.

For more information call the attorneys at Horn & Johnsen today.

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