Aviation Law AVM 375 Legal Aspects of Aviation

Aviation Law AVM 375

Legal Aspects of Aviation An Introduction Professor Greg Schwab

Course Highlights • A detailed examination of aviation law as it relates to the pilot, air traffic controller, airport manager, or other aviation professionals • This course is a practical approach to dealing with legal issues in the operations world. Special emphasis is placed on how to avoid legal problems and how to recognize when it’s necessary to seek the advice of a qualified aviation attorney • This course is not just about aviation law; it’s about aviation AND the law.

Course Requirements • Testing (midterm, final) • Presentation (~ 10 minutes) • Point paper outlining presentation • Attendance and participation • News Article, Case Studies

…in the present crisis, government is not the solution to our problems; government is the problem. From time to time we’ve been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. Well, if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?

…in the present crisis, government is not the solution to our problems; government is the problem. From time to time we’ve been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. Well, if no one among us is capable of governing himself, then who among us has the capacity to govern someone else? Ronald Reagan

Terms to Know… • Case Law – Evolves from similar court decisions from prior similar cases and establishes precedent for future cases • Plaintiff – Party that brings forward complaint – Brings “suit” against defendant

Terms to Know… • Defendant – The guy “on-the-spot” – Must defend himself against complaint • Party – This is easy—anyone involved in a case

Terms to Know • Civil Law – Laws to protect a person (or society) and property • Criminal Law – Protects community against harmful acts • Crime – Offense against the State or people of the State • “State of Indiana vs. John Q. Public”

Terms to Know… • Venue – Place or country in which injury happened – Normally associated with where the trial will occur – Does not refer to jurisdiction – Clients will look to most favorable location

Terms to Know… • Public Prosecutor – Brings suit against defendant • Felony – Crime punishable by death or prison sentence – Reserved for serious crimes • Misdemeanor – Less serious crimes—sometimes considered petty – Always less than 1 year jail time

Terms to Know… • Statutory Law – Acts made by those guys in the State Capital or Washington D. C. • Remedy – Makes person damaged whole again

Common Law • Law made by judges over the years, as distinguished from statutory law made by legislators and regulations adopted by administrative agencies • Court give high priority to protecting the health and safety as public policy • Based on precedent or previous court decisions

Terms to Know… • Jurisdiction – The right to act – Must have: • Power • Authority • Capacity – Who/where a case can be heard – States have jurisdiction over cases occurring in their area that do not involve federal issues

Section I Overview of the history of law

U. S. Legal Philosophy • What is aviation law? • Broad in scope: – Federal Aviation Regulations – Labor Relation Law – Product Liability Law – Fair Credit Law – Transportation Law

Origin of Western Law • Well-rooted in English law and history • Magna Carta – “You can’t do that, it’s against the law” • Common Law – No specific beginning • Constitutional Law – From an organized political body

U. S. Historical Development – 1775: American Revolution began – 1776: Declaration of Independence drafted • Stated why the colonists wanted to separate from Great Britain – 1781: Articles of Confederation drafted • Gave form to the new government but was too weak to bind the colonists together – 1787: U. S. Constitution drafted – 1788: U. S. Constitution adopted as basic law of the land • Ratified by all states in 1790 – 1791: First 10 amendments added to the Constitution

Preamble to the Constitution We the people of the United States, In order to form a more perfect union, In order to establish justice, In order to insure domestic tranquility, To provide for the common defense, To promote the general welfare, To secure the blessings of liberty to ourselves and our posterity, Do ordain and establish this constitution for the United States of America

Constitutional Powers • Article One – Legislative powers assigned to two houses – Senate with equal representation from each state – House of Representatives with representation by populace • Article Two – Executive power is administrative power resting with the President and Vice-President • Article Three – Judicial Power is vested in the Supreme Court and other such inferior courts which Congress creates • Article Four – Established states’ rights

The Bill of Rights First Amendment Freedom of Speech, Press, and Peaceable Assembly Second Amendment Right to Bear Arms (recent court decisions afirm this as an individual right) Third Amendment Government can not quarter soldiers in homes, and people have the right to oppose it Fourth Amendment The people protected against unreasonable search and seizure Fifth Amendment Due process of the Law, Protects against self-incrimination

The Bill of Rights (Con’t) Sixth Amendment Speedy and public trial by impartial jury Seventh Amendment Right to trial by jury in civil cases Eighth Amendment Excessive bail shall not be required, nor cruel and unusual punishments imposed Ninth Amendment Other rights retained by the citizen Tenth Amendment Powers not delegated to the federal government are reserved for the states

Federal Courts • U. S. Supreme Court – 1 Chief Justice – 8 Associate Judges • How they got their jobs – Political appointment by the President – Advice and Consent of the Senate • Appointment is for life • What they do: – Constitutional interpretation, expressly stated or implied

U. S. Supreme Court (Con’t) • Once power applied (established), then can be widely interpreted • But…All powers not granted by the Constitution to the federal government are retained by the states • How they do their jobs: – Majority decision prevails – But… dissenting decisions are not without importance and are widely argued in many cases

U. S. Supreme Court • Can pass judgment on Constitutional issues on state laws, thus making federal government superior to states • Also decides if acts passed by Congress are Constitutional • Court selects cases to be “heard” – About 80 cases per year • Individuals petition for Writ of Certiorari – Must present constitutional issue of importance • “Fascinating legal issue of nationwide importance that cry out for the Courts attention”

U. S. Supreme Court • Reversals • Courts can and does reverse itself from time to time • Why? – Passage of Time – Circumstance – Public Perception • The above causes change in the national outlook • Future cases are argued both ways

U. S. Court of Appeals • Just below U. S. Supreme Court • “Hear” cases referred by the states • Limit on the types of cases heard – Sums of money – Two or more states involved – Some Federal factor or issue

U. S. District Court • Hey! You can’t sue the Government! – Yes, you can… • Have original jurisdiction with Court of Claims against the United States • Most aviation cases start/or end at this level • Have power to remand cases to an administrative body – FAA – NTSB – DOT

Congressional Role • Set broad policies • Delegates authority to administrative agencies – Regulatory control – Power of the purse • Senate and House of Representatives – Negotiate differences through committee

Executive Role • Appoints Board Members – NTSB—FAA—DOT • May order investigations • Drafts national budget • Nominates Supreme Court Justices

State Court System • Whatever right not given to the Federal Government is reserved to the States (U. S. Constitution) • Government is least harmful when it is nearest the citizens • State courts have consistently became more specialized • All States have at least these levels of courts: – Local Trial Courts – State Intermediate Appellate Courts and Supreme Courts

Local Trial Courts • Limited jurisdiction (Civil cases only) – Traffic offenses, estate cases, juvenile court) – Other minor cases (small claims, wills, orphans) • Also referred to as: – People’s Court – Conciliation Court – Magistrate’s Court • Hear cases involving less than $5, 000 • Other Types – Probate Court – Family Court (Divorce)

State Trial Courts • General jurisdiction to hear wide variety of cases – Initial aviation issues are heard at this level • “State versus Defendant” • Examples: – District Court of Common Pleas – Circuit Court of … – Superior Court of … • Local trial court cases can be appealed to these courts • Decisions are important because few cases are appealed to a higher level • Civil and Criminal Cases heard

State Intermediate Appellate Courts • Cases referred to them from courts of lower limited jurisdiction • If satisfactory decision is reached then no further appeal is necessary – Must consider time and money involved • DOES NOT deal with Trial courts finding of fact – Rather decides if Trial Judge correctly applied the law • Civil and Criminal Cases heard

State Supreme Court • All states have one Supreme Court • Some states allow a case to move from the local court directly to the State Supreme Court • State jealously guard their powers – Citizens wish to retain control of their lives and laws • States differ in preferences – i. e. French versus English orientation • States protect local interpretation of laws – i. e. oil production, tobacco, grain, fishing • Aviation is concerned with many state laws due to wide variation of legal interpretations

Section II Contract Law Reasons and Implications

Types of Contracts • Written • Verbal • Implied

Verbal Contract • Not written but understood • Can imply action – ACFT maintenance (implied) • Should have written contract – Many transactions do not

Parts of the Contract • Subject – Goal of contract – Must be lawful – Frivolous contract not enforceable • Exploitive or abuse of bargaining power • Agreement – All parties agree • Consideration – Agreed upon consideration – An offer with serious intent and made in good faith is binding

Contracts • Enforceable in contracting state requirements – Must be clear to all parties – Entered without fraudulent intent – Contracts won by unwarranted pressure or threats are unenforceable

Section III Liability and Negligence

Liability Concepts • Liability is a broad legal term that includes many areas • Liability law is divided into three types: – Administrative – Civil – Criminal

Basic Principles of Liability • Purpose of this section is to ensure that you have a working knowledge of the kinds of behavior you must refrain from to avoid liability.

Liability • Liability includes: – Obligations – Debts – Assumption of risks • Liable means a person is: – Answerable – Chargeable – Compelled to make restitution

Liability, Con’t. • Civil law is divided into: – Tort Law – Contract Law • Liability determined by: – Limited Liability – Strict Liability

Tort Law • What is a tort? – A statement, writing, or print against a person – Must damage his/her reputation • Diminishes his respectability • Discredits him – Act or omission that causes injury to another person by breach of a legal duty not arising out of a contract that subjects the “actor” to liability for damages in a civil lawsuit

Tort Law, Cont. • In Latin, tort means “to twist” • A tort represents a civil wrong – Can be property damage or loss – Injury to individual • Tort law is not contract law • Tort law imposes human relations • Types of torts: – Intentional torts – Negligence

Intentional Torts • Trespass – In aviation: landing aircraft on the wrong field • Conversion—act of assuming rights of the owner or person entitled to personal property that are inconsistent with the rights of the owner or person entitled to possession – In society: joyriding with someone else’s car – In aviation: FBO apprehending equipment for debts owed

Intentional Torts • Mental Distress • False Imprisonment – Falsely holding someone against their will – In aviation—FBO using force to collect debt owed physically blocks aircraft from departure • False Arrest – False imprisonment carried out by erroneous assertion of legal authority to detain another person – Authority to do a citizen’s arrest is generally limited to felonies (murder, robbery, or burglary)

Intentional Torts • Battery – harmful or offensive contact with another person without consent – Punching a person, sexual contact • Assault – a battery attempt that missed – He ducked when I tried to hit him

Intentional Torts • All “acts” while negligence may consist of either an act or an omission. Some “acts” are criminal in nature • “Actor” may be subject to fine or imprisonment and ordered to pay compensation in a civil trial – Courts have held this is not double jeopardy (criminal acts)

Negligence and Liability • Negligence is the most common form of tort involved in aircraft accident litigation • Common threat running through all law is: – You are responsible for the consequences of your actions.

Negligence • Negligence means failing to do an act that a reasonable careful person would do to protect others from harm –or- doing an act that a reasonable careful person would not do under the same or similar circumstances.

Elements of a Negligence Case • • A duty to be reasonably careful A failure to be reasonable careful… Which is the proximate cause of… Injury to another person or his/her property

Duty extends to… • Anyone who might possibly be injured (or suffer harm) by your neglect • Must be reasonably careful (in aviation: great reasonable care)

Failure to use care… • The jury decides if you were “reasonably careful” • The jury relies upon experts – In aviation: aviation experts, FARs, AIM, airworthiness directives, ACs

Injury… • Ordinarily, real physical injury or property damage – Not just frightening • Even if you were not reasonably careful, if your act did not cause harm, you cannot be successfully sued for negligence – But, does not relieve you from FAA Certificate action

Proximate Cause… • Your neglect must have actually caused the injury, or at least by setting in motion a sequence of events that would not otherwise have occurred • Not same thing as “NTSB Finding of Probable Cause” nor will NTSB’s opinion of probable cause be admissible as evidence at trial • However, facts found by the NTSB investigators during the investigation of the accident will be admissible at trial

Proximate Cause, Con’t. • There maybe more than one proximate cause of the accident and more than one person’s negligence may be proximate causes of the accident • When a judges find that multiple defendants are found negligent, some states allow judges and juries to “apportion” the percentage of negligence among them (i. e. 60%/40%) • Some states award and allow the plaintiff to go after whom they want (i. e. most likely those companies or individuals with the most ability to pay)

Proof of Negligence • Plaintiff must first present evidence to prove each of the 4 elements of negligence to satisfy the burden of proof • Proof is established by the preponderance of the evidence (51%) not beyond a reasonable doubt

Negligence • Degrees of care – Great care and caution • In aviation: all certified air carriers, A&P mechanics, air traffic controllers, airport managers – Ordinary care • In aviation: charter carriers – Slight care • In aviation: essentially does not apply • The basis of liability is negligence

Negligence Per Se • Negligence occurred despite FARs to prevent such accidents • Losing an FAA enforcement action can also result in losing under civil action

Defenses against Negligence • Sudden Emergency Doctrine • Assumption of the risk • Contributory negligence

Sudden Emergency Doctrine • Stresses imposed by sudden onset of an in-flight emergency situation may interfere with human decision making – Judge or jury weighs the reasonableness of your behavior, so an imperfect performance that might otherwise have been considered not reasonably careful could be found not to cause negligence in the face of an emergency situation • No reduced standard if pilot negligence involved – i. e. pilot takes off with minimum fuel and then crashes can be held accountable for inadequate pre-flight inspection

Assumption of the Risk • If a person can be proved to have known and understood the scope, nature, and extent of risk involved in flight and to have voluntarily and freely chosen to incur that risk, that may serve to relieve others of legal responsibility – i. e. non-pilot aeronautical engineer asking a pilot to conduct an intentional spin in an aircraft not authorized for spins, then crashes

Contributing Negligence • If Plaintiff’s negligence was also a proximate cause of the accident, this fact may reduce the extent of the defendant’s liability or relieve the defendant of all liability – Some states have adopted comparative negligence • Judge or jury provides % to each – Last clear chance • Another example of courts trying to protect people’s health and safety

Res Ipsa Loquitur • Legal doctrine stating “that the facts speak for themselves” • Plaintiff can prove negligence, even if no one knows what happened, if… – The accident is not the sort of thing that normally occurs unless someone was negligent – The aircraft involved in the accident was within the exclusive control of the defendant – Whatever happened, the accident was not caused by any fault of the plaintiff • Most successfully used where airliner crashed and the cause of the crash could not be determined

Strict Liability for Defective Products • How it applies to aviation: – A person selling a product delivered in a defective condition unreasonably dangerous to the user, or other persons in the area of anticipated use is strictly liable even if they were careful if… • The seller is in the business of selling such products • The product is expected to be used without substantial change in the condition in which it was sold

Strict Liability, Con’t. • If the last two apply, then… • Negligence need not be proven and the seller is liable for resulting injury to users and others even if the seller exercised all possible care in the manufacture, inspection, and sale of the product and even if the seller had no contact with the injured person • The above represents common law

Organizing the Business to Limit Liability • Forms of Business – Sole proprietorship – General partnership – Limited liability company (LLC) – Corporation

Sole Proprietorship • Business is owned by a single individual • That individual is responsible for: – Debts of the business – Torts committed by the employees • Very high risk • Measure cost vs. benefit (being your own boss vs. risking all of your personal assets)

General Partnership • Required to have at least one general partner whose personal assets are at risk for business liabilities • Limited partners have protection from personal liability (similar to shareholders in a corporation)

Limited Liability Companies • Also known as LLCs • Owners have same protection against personal liability as in corporation • Can possess the limited liability of a corporation and the tax treatment of a partnership

Corporations • No owner (shareholder) of the business takes on the added risk of personal liability for tort committed by employees or debts of the business • LLC and corporation offer best protection for investment but also have certain downfalls (i. e. tax considerations and capital requirements)

Forming a Corporation • To incorporate your business, you need: – Agent for service of process – Articles of incorporation • Similar to what a constitution is to a nation • After state accepts your articles, you will be issued the certificate of incorporation

Watch Out… • The certificate itself may not be able to protect you from personal liability • Alter ego doctrine: – If your business continues to operate as though it were a sole proprietorship or a partnership, an attorney may be able to “pierce the corporate veil” to reach your personal assets in a liability case

Looking like a Corporation… • • • Showing the corporate name Adequate capitalization Multiple Shareholders Corporate Signature Separation of personal assets Making and documenting corporate decisions

Duties to Employees • • • Workers compensation insurance Unemployment compensation insurance Pay agreed wage Withhold payroll taxes Provide a safe place to work

Evading Taxes • Businesses try to avoid withholding employee taxes and paying employee benefits by considering the employee an independent contractor • IRS has the benefit of hindsight review to determine the person was really an employee by using the right to control and direct test • The business may then be liable for back taxes, interest, and late charges

Lines of Defense • Organizing your business as a corporation or LLC should not be your entire risk management plan • Risk management plan must be in-depth and diversified, and should include: – Accident Prevention program – Liability Insurance

Aviation Insurance • Adequate insurance should be a key feature of your risk management plan – Determine the insurance needs to order the correct coverage – Analyze the policy to be sure it adequately covers your needs – Recognize changing circumstances to make changes in your insurance

Insurance Fundamentals • • • Sales Insuring and underwriting the risk Claims Insurance coverages Uninsured Matters

Insurance Sales • Aviation insurance is sold by agents, by brokers, and directly by some insurance companies – Agents – represents one or more insurance companies as a salesperson – Broker – represents you shopping around to find the best available deal – Direct insurance – some companies such as Avemco sell insurance over the phone instead of through agents and brokers

Underwriting the Risk • Insurance companies – In GA, most policies are insured by a single insurance company • Underwriters – most airline insurance policies spread the risk over several insurance companies through the process of underwriting

Claims • If you have an accident, you are required by the policy to immediately report it to your insurance company – Claims on the policy will e investigated and offers extended by an insurance adjusters – Adjuster represent the company in determining whether the loss is covered by the policy and the monetary value of the damages

Insurance Principles • Spreading the Risk – Insurances serves to spread the risk of that unlikely but potentially catastrophic event over many similar operators • Minimizing the Risk – Operators perceived as being the safest are able to purchase insurance less expensively than average operators

Aircraft Insurance • Liability Coverage – Covers your liability for injuries to passengers in aircraft, persons and property on the ground, and other aircraft • Hull Coverage – Covers damage to or destruction of the insured aircraft resulting from an accident • Hull coverage may be purchased to cover all risk, all risks while not in flight, or all risks while not in motion

Purpose of Use • Another choice you will have to make when order aircraft insurance coverage is the purpose of use of the aircraft – – – Pleasure and business Industrial aid Limited commercial Commercial except instruction or rental Commercial Special uses

Pleasure and Business • Generally covers: – Pleasure flying and personal flying incidental to or in direct connection with the insured’s business – excluding any operation for which a charge is made

Industrial Aid • Generally includes – everything covered by pleasure and business – transportation of your business’s executives, employees, guests, and customers – Excluding any operation for which a charge is made

Commercial Except Instruction and Rental • Generally includes: – All uses covered by pleasure and business – All uses covered by industrial aid – The transportation of passengers or cargo for hire – Excluding commercial flight instruction – Excluding rental of the aircraft to other pilots

Limited Commercial • Generally includes: – All operations covered by pleasure and business and industrial aid – Commercial flight instruction and aircraft rental to other pilots – Excludes carrying passengers or cargo for hire

Commercial • Generally referred to as full commercial • Generally covers: – – – Pleasure and business Industrial aid Carrying passengers and cargo for hire Commercial flight instruction Rental to other pilots • The is the coverage needed by a full-service FBO

Special Uses • Flight operations considered at a higher level of risk must pay a higher premium • These operations include: – – – – – Agricultural aviation operations Operations requiring an FAR waiver Aerial fire fighting Helicopter external-load operations Helicopter flight training Banner and glider towing Fish spotting Power line or pipeline control Emergency medical service helicopter ops

Pilot Qualifications • The premium you pay for your aircraft insurance policy varies inversely with the minimum qualifications of the pilots who will be permitted to operate the aircraft • You must make sure to never allow a pilot who does not meet the pilot qualification requirements of your insurance policy to operate the aircraft

Airport Liability Insurance • If your business is located on an airport, you will need airport liability insurance, including: – Premises liability – Hangarkeeper’s liability

Premises Liability • This covers injury to nonemployees occurring at your place of business • Any business, no matter where it is located, should have premises liability coverage

Hangarkeeper’s Liability • This insurance covers your liability for damage to other people’s airplanes while they are in your car, custody, or control • In-flight hangarkeeper’s covers any damage the customer’s aircraft may suffer during operations by your employees

Product Liability Insurance • This type of insurance is needed by all businesses that perform aircraft inspection, maintenance, or modification, or supply aircraft parts, fuel, and lubricants • This insurance is needed to cover claims arising out of faulty workmanship, oversights in inspection, or errors and defects in design or manufacture that might lead to claims of negligence

Prepaid Legal Services • These plans will pay the cost of an attorney to defend you in the event the FAA acts to suspend or revoke your pilot or mechanic certificate

Loss of License Insurance • Loss of license insurance may provide you an income and the cost of learning another trade or profession in the event that the pilot, mechanic, or aviation medical certificate necessary to your work is suspended or revoked

Excess Liability Coverage • Also referred to as an umbrella policy • This insurance becomes available to pay liability claims only after all other applicable policies have paid to their policy limits • For each of the liability coverages, the insurance company owes the insured the duty either to defend claims or pay the claim up to the policy limit

Claims • The insurance company has the obligation to defend the claim in court or to settle the claim out of court for any amount up to the policy limit • The insured’s duties include to pay premiums as they become due, to be truthful in all disclosures made to the insurance company, and to cooperate with the company during an investigation

Subrogation • The right to pursue any claims the insured might have against someone else who caused or contributed to the cause of the accident • Comes into play most frequently in the case of rented aircraft • Businesses that wish to protect their customers from subrogation may do so by purchasing a waiver of subrogation endorsement on the policy

Uninsured Matters • Some aviation activities you cannot purchase liability insurance • Liability insurance Is not available for: – Bodily injury to skydivers – hot-air balloon bungee-jumping operations • The operator may obtain a measure of protection through exculpatory contracts

Exculpatory Contracts • An agreement between the aircrft or airport operator and a participant in an aviation operations by which the participant agrees not to sue the operator of the aircraft or airport if the participant is killed or injured during the operations

Exculpatory Contracts, Con’t. • An exculpatory contract is appropriate only when: – The operations is not a common carrier operation – The activity is not one in which the law requires the operator to carry liability insurance – Insurance is not available to the operator

Exculpatory Contracts, Con’t. • Generally used in operations that are perceived by conservative insurance companies as involving high risk, for which no statistics are available to the insurance companies, constituting “unknown risk” • Examples include: airlifting skydivers or bungee jumpers, or motion picture “stunt” flying

Exculpatory Contracts, Con’t. • Contract should include that the person signing the agreement: – Knows and understands the scope, nature, and extent of the risk involved in the operation – Freely and voluntarily chooses to incur that risk

Exculpatory Contracts, Con’t. • The most effective form of the document requires: – The person giving up the right to sue – To read it carefully – To leave a trail of crossings-out and initials throughout the document to indicate having read and understood the document

Exculpatory Contracts, Con’t. • Each contract should be handcrafted by your lawyer for your specific operation • By using “generic” contracts, the documents do not provide you with the maximum available protection • The best contract does not provide you protection as good as adequate liability insurance, but does provide a depth and diversity to a good risk management plan

Section IV FAA Enforcement

FAA Enforcement • The purpose of this segment is to furnish a practical working knowledge of your legal rights in FAA investigations and enforcement situations and when to seek the assistance of a competent aviation attorney • The purpose is NOT to critique the FAA nor its’ employees (our fellow aviators)

FAA Enforcement • Face this fact! • The FAA prevails in an overwhelming number of it’s enforcement cases against airman certificate holders. Airmen are clearly at a disadvantage with facing FAA certificate action. The following guidance will assist in understanding and dealing in such an environment.

FAA Enforcement • Nationwide the FAA has 2500 inspectors that carry out enforcement action. • That’s 2500 opportunities for different opinions on regulation/policy/directive interpretations. • Let’s not forget the political and organizational structure over the inspectors.

FAA Enforcement • Indianapolis FSDO FY 2002 Statistics – 84 Violations Total • 48 Air Carrier (Most MX Related) • 36 General Aviation – 2 MX related, 4 Operations related, 6 Accident related » Most of these were paper-related violations

FAA Enforcement • Indianapolis FSDO FY 2002 Statistics • 30 Violations (of the 84) from Air Traffic Systems – 2 Air Carrier, (1 Rwy Incursion, 1 Pilot Deviation -Alt) • General Aviation – 28 General Aviation Aircraft Violations » 14 TFR Violations » 4 Airspace » 7 Pilot Deviation » 2 Restricted Airspace » 1 Low Flying

Administrative Law • Aviation industry deals more with this area of law than all other areas combined. These references are designed to keep airmen and the public safe. – FAR’s • FAR’s authorized by Title 14 of the code of regulations which address every conceivable body of aviation – AC’s – AD’s – Handbooks

FAA Enforcement: Broad in scope • Certification of People – Pilots, flight engineers, controllers, navigators, mechanics, dispatchers, inspectors, parachute riggers, ground/flight instructors • Places – Airports • Things – Flag carriers, supplemental carriers, air travel clubs, helicopter ops, air tax service, ag aircraft, pilot, controller, dispatcher training, repair stations, maintenance schools

FAA Enforcement • When the FAA has reason to suspect an individual or company has violated one or more FAR’s, the FAA can choose from a variety of penalties to punish the violator • Administrative law rather than criminal law (in most cases) • Honesty always pays with the FAA. Nothing infuriates the FAA more than dishonesty.

FAA Enforcement • Rule #1 – FAA inspectors are not required to advise suspects of their legal rights. • In regards to certificate action, airmen have no Miranda rights. None. • Rules of evidence do not apply and “hearsay” is commonly admissible during enforcement actions. • Enforcement policy varies by FAA Region. This inconsistency is unfair, but that’s the way it is.

FAA Enforcement Options • • • Administrative Dispositions Certificate Actions Civil Penalties (Fines) Summary Seizure of Aircraft Reexamination

FAA Enforcement Administrative Dispositions

Administrative Dispositions : Warning Notice • Same as receiving a letter or warning notice from the police. • States your actions may have been a violation but the FAA decided not to file a violation. • FAA will issue to perceived minor violations that the FAA does not want to ignore.

FAA Enforcement Letter of Correction

FAA Enforcement: Letter of Correction • FAA issues to correct defect – i. e. bad ELT battery on aircraft. • In light of corrective action taken by you the FAA will not pursue other actions.

Letter of Correction • Remedial training possible if FAA agrees – See training as necessary if pilot has constructive attitude – Your flight was not for hire – You have a clean record – Not for lack of qualification – Violation was not deliberate, grossly negligent, or criminal intent

Letter of Correction • Does not include a testing component (normally) • After completion of training, you are off the hook • If given the choice between remedial training and enforcement certification action, TAKE THE REMEDIAL TRAINING EVERY TIME! • If you are issued a Notice or Letter, it becomes part of your record at Oklahoma City – Automatically removed after two years

FAA Enforcement Certificate Action

Certificate Action • Factors considered: – Precedent • Penalty upheld by NTSB (Case law) – Current FAA Enforcement Priorities • Trends or patterns (I. e. TFR violations) – Individuals considerations • • • Degree of hazard Nature of violation Violations previously recorded Level of violators experience Pilot attitude Horror factor

FAA Enforcement Civil Penalties

Civil Penalties • FAA can choose to impose fines instead of certificate action when FAA cannot do both (double jeopardy). • Rule #2: FAA likes to use certificate action against individual and fines against companies – Individual fines - $1, 000 per violation – Businesses - $10, 000 per violation – Falsification of records to anyone is up to $250, 000 • i. e. maintenance records, etc. – Most incident incur multiple FAR violations, some include miscellaneous charges such as FAR 91. 13 – Careless or reckless operation or fining air carriers for multiple departures.

FAA Enforcement Summary of Seizure of Aircraft

Summary of Seizure of Aircraft • If FAA is concerned about your ability to pay fines, they can seize your aircraft until the fine is paid or bond posted.

FAA Enforcement Airman Re-examination

Airman Re-examination • FAA must have reasonable basis for requesting, but if they do, you have no right of appeal and must submit to re-examination. • Rule #3: If requested, always submit yourself to re-examination without delay and with a positive attitude.

FAA Enforcement Investigations

Investigations • FAR violations are assigned to a local FSDO safety inspector for investigation. • Most FAR violations are discovered during the course of normal duties by FSDO, think of them as “cops on a beat. ” – Ramp Inspectors of: • Airports • Part 135 Air-Taxi • Part 121 – Air Traffic Controllers • Second highest source for violations – General Public • 1 -800 -255 -1111

FAA Inspector • Rule #4: The most damaging period for the airman is the first contact they have with the inspector. The FAA knows this and exploits this human error. • Remember Rule #1! • FAA exploits you by: – Getting damaging admissions early in the investigation with the airman not realizing he/she is under investigation. – They know these admissions could make your case impossible to effectively defend later. – FAA has the burden of proof, but your early confessions are admissible • Courts have held that investigations dealing with aviation are not criminal and thus, absence of the “Miranda Rights” are “merely administrative in nature”.

FAA Inspector • Now what do you do? • You still have most of the rights of a criminal under investigation. • Rule #5: You have the right to remain silent— exploit it! • Anything you say WILL BE USED AGAINST YOU for certification action or civil penalties! • Rule #6: You have the right to have a lawyer present during questioning. • BAD NEWS: You don’t have the right to a court appointed lawyer.

FAA Inspector • What else you need to know: – FAA inspectors are not required to identify themselves before talking to you. – Rule #7: This is how the FAA can trick you into an early confession. – You can and should ask to see the inspector’s identification card—they do not have badges.

FAA Inspector • Some tip-offs to defeat their efforts • If anyone asks the following questions be ready to rise the flag of defense: – Anytime someone asks to discuss your “history” • Unless you feel this guy is writing a novel on aviation exploits and wants to devote a chapter about your history. – If you recognize trouble early: • “Why do you ask”? • Just as well see what the inspector already knows.

FAA Inspector • What if the inspector continues his pressure to uncover information without a lawyer present? • You have two choices: both unpleasant – Don’t talk—inspector may show in his report “the suspect displayed a belligerent, uncooperative attitude” or the “suspect lacks a constructive attitude” and thus could be denied remedial training—inspector goes away mad. – Talk—inspector goes away happy because he got you to confess. • Rule #8: Go with the mad inspector every time! NEVER discuss your history with the FAA without your attorney present. • But, don’t appear disrespectful!

First Contact • What do I do? • Gee, Mr. Inspector, I really would love to talk to you about this… but, the professional thing for me to do is contact my lawyer. May I call you after I consult with him? • Then of course, have your lawyer make the decision to contact the FAA directly. • Remember Rule #4 and #5—NEVER DISCUSS ANYTHING WITH THE FAA WITHOUT YOUR LAWYER PRESENT.

NASA Report • More about this later……

Displaying Documents • FAR 61. 3(h) and 61. 51(d) requires you to present your: – Airmen certificate – Medical certificate – Logbook • To whom? – Any FAA, NTSB, or any State or local law enforcement officer upon reasonable request.

Displaying Documents • You are not required to have your logbook with you unless you are a student on a cross-country trip. – Probably best that you don’t have it with you. • Must present aircraft worthiness certificate for inspection upon request -FAR 21. 181 (b) – The key here is present your certificate, never surrender your certificate. – Unless the FAA presents you a written order of suspension or revocation signed by an FAA lawyer.

Displaying Documents • What if the FAA tries to take your certificate? – Insist upon them returning it to you. • Otherwise they can say you voluntarily surrendered it and thus gave up your right to appeal the revocation of these certificates—present but never surrender! – Present, BUT DO NOT DISCUSS these documents without your lawyer present. – If the FAA inspector still tries to remove your certificate: • The score is tied, you need a witness. Scream bloody murder and get witnesses who can later testify you did not voluntarily give up the documents.

Aircraft Inspection • When and if a FAA inspector wants to board an aircraft: – If you are Part 135/121, you must let them in upon request – Otherwise, don’t let them in • Should you have a disagreement with an inspector, ask a mechanic to look at the aircraft. • The inspector can issue an Aircraft Condition Notice, FAA Form 8620 -1.

Airmen Certificates Prosecution and Appeal Process

Prosecution and Appeal Process • The purpose of this section to to inform you about the process of the execution of enforcement action when remedial training has not been selected or resolved a violation. Current FAA enforcement policies vary from Region to Region.

FAA Certificate Action • Notice of Proposed Certificate Action – Expect this if the FAA feels they want to suspend or revoke your certificate. – States exactly what FAR’s the FAA believes you have violated and states what the FAA intends to do about it. – You will be offered an opportunity for a informal conference with an FAA attorney.

Informal Conference • Remember Rule #7? Always accept and attend this conference BUT go with your aviation attorney. • This is a settlement conference. So settle it! • Who’s there: – FAA Attorney – FAA Inspector – You AND your attorney

Informal Conference • They will look at your attitude, professionalism and ask you WHAT you did and WHY you did it. • Informal conference CANNOT be used against you at a hearing before the NTSB on appeal. • But…don’t tell a different story when you testify under oath because the FAA will impeach your credibility. • Remember, in this role, the FAA is your adversary and cannot advise or help you.

Informal Conference • The FAA may offer to reduce the period of suspension or allow you to to pay a fine instead of having your certificate suspended. • Remedial training may still be an option. • Rarely, you may be able to convince them you are innocent. • Rule #9: Try your best to settle at the informal conference.

Order of Suspension or Revocation • If you DO NOT attend an informal conference or if you are unable to settle (and I told already told you to attend and settle under Rule #9) the FAA will issue the order. • Unless, the order is captioned as an emergency order it does not take effect immediately.

Order of Suspension or Revocation • These orders are usually sent by certified mail to the address on file with the FAA. – Good reason to keep your address updated with the FAA per FAR 61. 60. • You can defer the effective date by filing an appeal with the NTSB within 20 days AND provided your attorney follows the NTSB Rules of Practice in Air Safety Procedures

NTSB Appeal • Important point!!! Use an aviation attorney! • Why? You only have 20 days to appeal. An attorney (such as probate) won’t have a clue about the NTSB documents. • Don’t pay an attorney for on-the-jobtraining!

Order of Suspension or Revocation • Provided you make an appeal with 20 days AND provided your attorney followed the NTSB Rules of Practice and Procedures the FAA’s order is stayed. • Yes, you can STILL exercise privileges as an airmen certificate holder. • If you DO NOT appeal within 20 days the order becomes final and you can NOT appeal the FAA’s order! = Loss of privileges!!

NTSB Appeal • As soon as you receive the FAA Order, take it to your AVIATION attorney to file an appeal. • The FAA will file its order with the NTSB Board as its complaint. Your attorney must respond stating which (if any) of the FAA allegations you admit and which you deny. • Case will be assigned to a law judge.

NTSB Appeal • Discovery – Your aviation attorney will ask the FAA to provide a list of witnesses they intend to use at the hearing and copies of all statements they have received from those witnesses. • Can you still Fly? Yes, you can exercise FULL and complete privileges of the certificate.

The Hearing • Trial-type hearing before NTSB administrative judge in a city near you! Usually where the witnesses are located. – This judge travels in circuits hearing enforcement and medical appeals. • “SHOW TIME” The only shot you’ll ever get to prove you case. • Can you still fly? Yes, you can.

NTSB Hearing • You ARE NOT ENTITLED to a trail by jury of you peers. • Some good news! The burden of proof is on the FAA based upon the preponderance of the evidence (51%). • Your aviation attorney will try to discredit the FAA, but… • The FAA can cross-examine you to discredit you! • Judge will make decision at the end of the trial.

The Decision; now what? • The judge will; – Affirm the order of the FAA (you lose). – Decide the FAA proved some but not all of the charges and reduce the suspension or change the fine. • But, the judge cannot impose a harsher punishment than the FAA ordered. • If EITHER side is displeased with the judges decision it may appeal to the full board.

Appeal to the full NTSB board • This is a paper appeal; you are not there. • Both sides file a written legal brief arguing their positions. • NO evidence allowed. • ONLY issues considered: – Did the judge afford both sides a fair hearing? – Did the judge apply the law correctly to the facts that were proved at the trial? • Can you still fly? Yes, you can.

Appeal to the U. S. Court of Appeals • Another paper appeal. • But, judges will usually allow the lawyers to the case to argue the case orally to the 3 -judge panel. • Again, no new evidence. • Can you still fly? Yes, you can, but… – Appeal does not automatically prevent the order from taking effect, but unless the original order was based on lack of qualifications the court will allow a motion to stay the order pending appeal.

Appeal to the U. S. Court of Appeals • How long am I going to have to wait? – Usually 2 years from appeal to decision. – Can I still fly, Yes, you can. – How much is this process going to cost? A LOT. • The decision is called a “written order. ” • Decision: – End of the road (that’s all folks!)

Surrendering your certificate • If you don’t appeal, or finally lose your appeal, you must physically surrender your certificate to the FAA for the suspension or revocation. • So what, I’m bad! What if I don’t? • The FAA will get an order from a U. S. District judge for you to appear in court to explain why not. – Could be jailed for contempt of court until certificate surrendered.

Emergency Cases • Don’t go here! • The FAA can issue and order to prevent you from flying. • If so, certificate MUST BE surrendered then and there. • Denies you the due process of law, thus, the FAA only uses this option in extreme cases.

Getting your certificate back • If suspended; – Automatically returned to you at the end of the suspension. • If revocation: – Doesn’t necessarily mean forever. • When is forever? If drug-related charge. • If for FAR violation; – 1 year you may apply for reclassification • If ATP Falsification; don’t go there. – Forever. Why? ATP’s must be of good moral character

Clearing your record • A FAR violation places your record at a competitive disadvantage. • You may experience an increase in insurance costs – You may not be insurable. • Administrative letters automatically removed after 1 year – Yeah, right! Make sure you check yourself, ask for an updated report to make certain. • If NO ENFORCEMENT ACTION IS TAKEN by the FAA; removed after 90 days. (What’s with that? ) • Records of enforcement action resulting in revocation stay on your record for life.

Section VI The NASA Report Immunity from Sanction

NASA Report • www. asrs. gov (website) • The purpose of the NASA Report is to identify problems in the National transportation systems to provide a sound basis for improving the system.

NASA Report • There at least 3 reasons to file: – You may make an important contribution to aviation safety. – You may receive immunity from sanction for an FAR violation. – You have nothing to lose by filing a report.

NASA Report - Why File • 1. Improving the airspace system – You may observe or uncover a dangerous procedure overlooked by the FAA. • 2. The FAA considers the filing of a NASA Report indicative of a constructive attitude that make future violations less likely.

NASA Report • When filed, the FAA will impose a fine or suspend or revoke a pilot certificate for an FAR violation if report filed within 10 days. • How long do you have to file a NASA Report? • 10 days • The FAA can issue an order to make the violation a part of your airmen records (appealable)

NASA Report • File the NASA Report within 10 days of the event…. if uncertain, file a NASA Report within 10 days anyway. – Send it in certified return receipt (U. S. Mail) – NASA will return bottom portion of report to you upon receiving the report. – Thus, you have 2 receipts detailing the filing of your NASA Report.

NASA Report • When filing a NASA Report, be brief, state only the minimum of information necessary to establish the situation. • Should the FAA elect to violate you for an event, brandishing the mailing receipts is much like showing a cross to a vampire. – It stops the FAA in their tracks, provided….

NASA Report - Limitations • Event must not have been deliberate AND must not have involved a crime or accident. – NASA checks the forms upon submission. • A NASA Report will NOT protect you if your incident was due to lack of qualifications or competency.

NASA Report - Limitations • The FAA is prohibited from using the report or any information derived from the report in any enforcement action taken against you. • Should more than one person witness the event, each should fill out and submit a NASA Report.

Section VII FAA Medicals

Aviation Medicals • The purpose of this section is to discuss and ensure you have a practical working knowledge of how to analyze various aeronautical problems, arrive at the best solution, and provide the best response.

Aviation Medicals • You must hold a current FAA medical certificate in order to serve as a pilot or air traffic controller – FAA oversight is increasing due to the vast sums of data readily available via computer files – FAA scans driving record files through the National Driver Registry data file on traffic violations

Revocation of Medicals • Many people give up their medical certificate without a fight – Don’t take no for an answer – The FAA can be persuaded to re-instate your medical – If not, the NTSB can order the FAA to re-issue or issue your medical certificate

FAA Health Standards • Standards are written to help the FAA answer these questions: – Can you see and hear well enough to control the aircraft? – Are you likely to suffer a suddenly incapacitating medical catastrophe in flight? – Are you likely to operate an aircraft irresponsibly so as to endanger other people?

Disqualifying Conditions • If the flyer has a history or diagnosis of any of the following – Diabetes (requiring insulin or hypoglycemic medication for control) – Heart attack – Angina – Abnormal EKG or evidence of coronary artery disease

Disqualifying Conditions, Con’t. • • • Psychosis Epilepsy Alcoholism Drug addiction Disturbance of consciousness without explanation • Character or behavior disorder that repeatedly manifested itself by overt acts

Special Flight Tests • These flight tests allow people with vision and hearing problems to demonstrate their abilities despite their medical problems (i. e. vision and hearing problems) • Process referred to as certification by Statement of Demonstrated Ability (SODA)

Special Issuance • Should one or more of the 10 specifically disqualifying conditions exist, then you can request special evaluation and receive a medical certificate through special issuance • Burden is on you and your Aeronautical Medical Examiner (AME) to convince the FAA that you are an acceptable risk to flight safety

Medical Reconsideration • If your AME denies you, appeal to the FAA at Oklahoma City • If Oklahoma City denies you, appeal to the Federal Air Surgeon in Washington, D. C. • You are not required to report a change in health to the FAA before your application for a new medical. • However, you must refrain from exercising airman privileges upon learning of a disqualifying condition. Don’t get caught on this one!

Truth or Consequences • FAA medical certification is an honor system, depending on your truthfulness • To falsify an FAA form, it is both an FAR violation and a felony • FAA will revoke all FAA-issued certificates, and the U. S. Attorney will file charges on you up to five years in prison and/or a $250, 000 fine

Required Reports • You must report any conviction for a drug- or alcohol-related traffic offense or the denial, cancellation, suspension, or revocation of your driver’s license related to such an offense no later than 60 days after the conviction or occurrence • In Indiana, a DWI automatically and immediately results in a suspension of your drivers license and must be reported under FAR 61. 15.

Drug and Alcohol Testing • Mandatory drug and alcohol testing has become a routine requirement throughout the aviation industry • Refusal to submit to a mandatory drug or alcohol test is grounds for suspension or revocation of your pilot certificate

Get Help • An attorney who is knowledgeable in FAA medical certification procedures can be a tremendous help in evaluating your situation • To read more on FAA aviation medical certification standards, see FAA Medical Certification: Guidelines for Pilots by Dr. Richard O. Reinhart

References • Cohen, M. L. & Olson, K. C. (1996). Legal Research: In a nutshell. St. Paul, MN: West Publishing Company. • Gesell, L. E. (1998). Aviation and the law. Chandler, AZ: Coast Aire Publications. • Hamilton, J. S. (2002). Practical Aviation Law. Ames, IA: Iowa University Press. • Rollo, V. F. (1994). Aviation Law: An introduction. Lanham, MD: Maryland Historical Press.

Attorney References • Check local phone book under “attorney” • Check references and ensure the attorney has dealt with these types of cases. • AOPA (www. aopa. org) • ALPA (www. alpa. org) • Law Free Advice (www. freeadvice. com)

Great Video References • The Kindler, Gentler F. A. A. – The Myth or How to Protect your Pilot’s License • The NASA Form and Pilot Immunity • Ramp Check • Each available from: – – Alchemy Video Production Corp. POB 29569 New Orleans, LA 70189 -0569 1 -800 -721 -3992 or 504 -241 -9150

Your Speaker • Professor Gregory L. Schwab, Ed. D. (ABD) • Department of Aerospace Technology • Indiana State University • Terre Haute, IN 47834 • 1 -800 -833 -5325