Greg Reigel's Aero Legal Services

Airmen Liability For Aircraft Airworthiness

By Gregory J. Reigel

© October, 2007 All rights reserved.

What happens if an airman operates an aircraft and a subsequent inspection discloses that one or more of the aircraft's systems or components were broken during the airman's flight? Alternatively, what if maintenance is performed on an aircraft, but then the appropriate maintenance entry is not included in the aircraft's logbook prior to an airman's operation of the aircraft?

If the FAA learns of either of these situations, it is possible the FAA could charge the airman with violating FAR 91.7(a) (“no person may operate a civil aircraft unless it is in an airworthy condition"), FAR 91.405 (requiring owners and operators to ensure that maintenance personnel make appropriate entries in aircraft maintenance records), or both. What can an airman expect in these situations?

FAR 91.7(a)

In order to prevail on an allegation that an airman violated FAR 91.7(a), the FAA has the burden of proving that the aircraft was unairworthy by a preponderance of the substantial, reliable and probative evidence. National Transportation Safety Board precedent holds that the standard for airworthiness consists of two prongs: (1) whether the aircraft conforms to its type certificate and applicable Airworthiness Directives; and (2) whether the aircraft is in a condition for safe operation.

An aircraft's type design is defined by its FAA approved type certificate, type certificate data sheet, or any maintenance manuals governing an aircraft’s maintenance and flight protocol or relevant directives. An aircraft may still substantially conform to its type design even when small, insignificant deviations are present. Also keep in mind that the term "airworthiness" is not synonymous with "flyability.” Finally, the NTSB will also consider whether the operator knew or should have known of any deviation of the aircraft’s conformance with its type certificate.

Assuming the FAA pursues an enforcement action against an airman, how does the FAA prove this type of allegation at the hearing before the administrative law judge ("ALJ")? Well, the FAA must offer into evidence the aircraft’s type certificate, type certificate data sheet, or any maintenance manuals or relevant directives for the ALJ's review. After all, how is the ALJ going to know whether the aircraft conforms to its type design if the ALJ doesn't have the type design with which to compare the alleged non-conformity?

Although this seems like a "no-brainer," the FAA failed to present all of this evidence in two recent enforcement actions. In each case, the FAA's inspectors testified regarding alleged non-conformities, but were unable to testify as to how each alleged non-conformity was contrary to the respective aircraft's type certificate. In fact, in one case the FAA inspectors hadn't even reviewed the aircraft's type certificate in connection with the enforcement action. As a result, the FAA suffered dismissals for its failure of proof in each case.

Unfortunately for airmen, the loss of both of these cases, coupled with the NTSB's clear admonition to the FAA regarding the insufficiency of proof, will likely lead FAA counsel to be more thorough and diligent in future airworthiness enforcement cases.

FAR 91.405

A similar airworthiness issue arises in situations where maintenance is performed on an aircraft, but then the appropriate maintenance entry is not included in the aircraft's logbook prior to the airman's operation of the aircraft. In this type of case, the FAA alleges that the airman violated FAR 91.405, possibly in addition to an FAR 91.7(a) allegation. The FAA again has the burden of proving and must prove by a preponderance of the substantial, reliable and probative evidence that the airman operating the aircraft did not ensure that accurate, complete maintenance records accompanied the aircraft.

The airman can be held responsible for this type of violation if he or she fails to independently ensure that the required maintenance entries were recorded in the logbook, especially if the required entries had not been made. The airman's conduct is not excused simply because the maintenance personnel failed in their duties. The airman has a duty to inspect aircraft logbooks after maintenance has been performed and prior to first flight to confirm that the appropriate entries have been made.

This type of violation is much easier for the FAA to prove. It must simply show that the aircraft was operated when the appropriate entries had not been made in the aircraft's logbooks or maintenance records. The FAA can simply offer an inspector's testimony regarding his or her inspection of the aircraft's logbooks and maintenance records along with evidence of the airman's operation of the aircraft.

How does a non-A&P airman avoid this type of violation? Well, first and foremost, the airman should make sure that the logbook entry following maintenance states that the aircraft is returned to service. Beyond that, the nature and extent of the logbook entries will necessarily depend upon the work the maintenance shop performed.

Reputable shops err on the conservative side and provide detailed logbook entries for the maintenance they perform. Additionally, if you as an airman are unsure of what entries are required and whether the appropriate entries have been made, ask your A&P to explain the entries to you. Not only will this educate you, but it will also give you an opportunity to confirm that the entries have in fact been made and not inadvertantly omitted.

Conclusion

The reality of these airworthiness situations is that the flights typically occur under the FAA's radar. They usually only surface after an accident, incident, ramp check or other type of inspection. However, as illustrated by several recent NTSB cases, these situations do arise with some frequency. Understanding your responsibilities under the regulations and the FAA's burden of proof, along with counsel and advice from an aviation attorney, can help you successfully resolve these types of enforcement cases.