2Legal Aspects of Aviation An IntroductionProfessor Greg Schwab
3Course HighlightsA detailed examination of aviation law as it relates to the pilot, air traffic controller, airport manager, or other aviation professionalsThis 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 attorneyThis course is not just about aviation law; it’s about aviation AND the law.
4Course Requirements Testing (midterm, final) Presentation (~ 10 minutes)Point paper outlining presentationAttendance and participationNews Article, Case Studies
5…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?
6…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
7Terms to Know… Case Law Plaintiff Evolves from similar court decisions from prior similar cases and establishes precedent for future casesPlaintiffParty that brings forward complaintBrings “suit” against defendant
8Terms to Know… Defendant Party The guy “on-the-spot” Must defend himself against complaintPartyThis is easy—anyone involved in a case
9Terms to Know Civil Law Criminal Law Crime Laws to protect a person (or society) and propertyCriminal LawProtects community against harmful actsCrimeOffense against the State or people of the State“State of Indiana vs. John Q. Public”
10Terms to Know… Venue Place or country in which injury happened Normally associated with where the trial will occurDoes not refer to jurisdictionClients will look to most favorable location
11Terms to Know… Public Prosecutor Felony Misdemeanor Brings suit against defendantFelonyCrime punishable by death or prison sentenceReserved for serious crimesMisdemeanorLess serious crimes—sometimes considered pettyAlways less than 1 year jail time
12Terms to Know… Statutory Law Remedy Acts made by those guys in the State Capital or Washington D.C.RemedyMakes person damaged whole again
13Common LawLaw made by judges over the years, as distinguished from statutory law made by legislators and regulations adopted by administrative agenciesCourt give high priority to protecting the health and safety as public policyBased on precedent or previous court decisions
14Terms to Know… Jurisdiction The right to act Must have: PowerAuthorityCapacityWho/where a case can be heardStates have jurisdiction over cases occurring in their area that do not involve federal issues
15Overview of the history of law Section IOverview of the history of law
16U.S. Legal Philosophy What is aviation law? Broad in scope: Federal Aviation RegulationsLabor Relation LawProduct Liability LawFair Credit LawTransportation Law
17Origin of Western Law Well-rooted in English law and history Magna Carta“You can’t do that, it’s against the law”Common LawNo specific beginningConstitutional LawFrom an organized political body
18U.S. Historical Development 1775: American Revolution began1776: Declaration of Independence draftedStated why the colonists wanted to separate from Great Britain1781: Articles of Confederation draftedGave form to the new government but was too weak to bind the colonists together1787: U.S. Constitution drafted1788: U.S. Constitution adopted as basic law of the landRatified by all states in 17901791: First 10 amendments added to the Constitution
19Preamble 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
20Constitutional Powers Article OneLegislative powers assigned to two housesSenate with equal representation from each stateHouse of Representatives with representation by populaceArticle TwoExecutive power is administrative power resting with the President and Vice-PresidentArticle ThreeJudicial Power is vested in the Supreme Court and other such inferior courts which Congress createsArticle FourEstablished states’ rights
21The Bill of Rights First Amendment Freedom of Speech, Press, and Peaceable AssemblySecond AmendmentRight to Bear Arms (recent court decisions afirm this as an individual right)Third AmendmentGovernment can not quarter soldiers in homes, and people have the right to oppose itFourth AmendmentThe people protected against unreasonable search and seizureFifth AmendmentDue process of the Law, Protects against self-incrimination
22The Bill of Rights (Con’t) Sixth AmendmentSpeedy and public trial by impartial jurySeventh AmendmentRight to trial by jury in civil casesEighth AmendmentExcessive bail shall not be required, nor cruel and unusual punishments imposedNinth AmendmentOther rights retained by the citizenTenth AmendmentPowers not delegated to the federal government are reserved for the states
23Federal Courts U.S. Supreme Court How they got their jobs 1 Chief Justice8 Associate JudgesHow they got their jobsPolitical appointment by the PresidentAdvice and Consent of the SenateAppointment is for lifeWhat they do:Constitutional interpretation, expressly stated or implied
24U.S. Supreme Court (Con’t) Once power applied (established), then can be widely interpretedBut…All powers not granted by the Constitution to the federal government are retained by the statesHow they do their jobs:Majority decision prevailsBut… dissenting decisions are not without importance and are widely argued in many cases
25U.S. Supreme CourtCan pass judgment on Constitutional issues on state laws, thus making federal government superior to statesAlso decides if acts passed by Congress are ConstitutionalCourt selects cases to be “heard”About 80 cases per yearIndividuals petition for Writ of CertiorariMust present constitutional issue of importance“Fascinating legal issue of nationwide importance that cry out for the Courts attention”
26U.S. Supreme Court Reversals Courts can and does reverse itself from time to timeWhy?Passage of TimeCircumstancePublic PerceptionThe above causes change in the national outlookFuture cases are argued both ways
27U.S. Court of Appeals Just below U.S. Supreme Court “Hear” cases referred by the statesLimit on the types of cases heardSums of moneyTwo or more states involvedSome Federal factor or issue
28U.S. District Court Hey! You can’t sue the Government! Yes, you can…Have original jurisdiction with Court of Claims against the United StatesMost aviation cases start/or end at this levelHave power to remand cases to an administrative bodyFAANTSBDOT
29Congressional Role Set broad policies Delegates authority to administrative agenciesRegulatory controlPower of the purseSenate and House of RepresentativesNegotiate differences through committee
30Executive Role Appoints Board Members May order investigations NTSB—FAA—DOTMay order investigationsDrafts national budgetNominates Supreme Court Justices
31State Court SystemWhatever right not given to the Federal Government is reserved to the States (U.S. Constitution)Government is least harmful when it is nearest the citizensState courts have consistently became more specializedAll States have at least these levels of courts:Local Trial CourtsState Trial CourtsState Intermediate Appellate Courts and Supreme Courts
32Local 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 CourtConciliation CourtMagistrate’s CourtHear cases involving less than $5,000Other TypesProbate CourtFamily Court (Divorce)
33State 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 PleasCircuit Court of …Superior Court of …Local trial court cases can be appealed to these courtsDecisions are important because few cases are appealed to a higher levelCivil and Criminal Cases heard
34State Intermediate Appellate Courts Cases referred to them from courts of lower limited jurisdictionIf satisfactory decision is reached then no further appeal is necessaryMust consider time and money involvedDOES NOT deal with Trial courts finding of factRather decides if Trial Judge correctly applied the lawCivil and Criminal Cases heard
35State Supreme Court All states have one Supreme Court Some states allow a case to move from the local court directly to the State Supreme CourtState jealously guard their powersCitizens wish to retain control of their lives and lawsStates differ in preferencesi.e. French versus English orientationStates protect local interpretation of lawsi.e. oil production, tobacco, grain, fishingAviation is concerned with many state laws due to wide variation of legal interpretations
36Section II Contract Law Reasons and Implications
38Verbal Contract Not written but understood Can imply action ACFT maintenance (implied)Should have written contractMany transactions do not
39Parts of the Contract Subject Agreement Consideration Goal of contract Must be lawfulFrivolous contract not enforceableExploitive or abuse of bargaining powerAgreementAll parties agreeConsiderationAgreed upon considerationAn offer with serious intent and made in good faith is binding
40Contracts Enforceable in contracting state requirements Must be clear to all partiesEntered without fraudulent intentContracts won by unwarranted pressure or threats are unenforceable
42Liability ConceptsLiability is a broad legal term that includes many areasLiability law is divided into three types:AdministrativeCivilCriminal
43Basic 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.
44Liability Liability includes: Liable means a person is: Obligations DebtsAssumption of risksLiable means a person is:AnswerableChargeableCompelled to make restitution
45Liability, Con’t. Civil law is divided into: Liability determined by: Tort LawContract LawLiability determined by:Limited LiabilityStrict Liability
46Tort LawWhat is a tort?A statement, writing, or print against a personMust damage his/her reputationDiminishes his respectabilityDiscredits himAct 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
47Tort Law, Cont. In Latin, tort means “to twist” A tort represents a civil wrongCan be property damage or lossInjury to individualTort law is not contract lawTort law imposes human relationsTypes of torts:Intentional tortsNegligence
48Intentional Torts Trespass In aviation: landing aircraft on the wrong fieldConversion—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 possessionIn society: joyriding with someone else’s carIn aviation: FBO apprehending equipment for debts owed
49Intentional Torts Mental Distress False Imprisonment False Arrest Falsely holding someone against their willIn aviation—FBO using force to collect debt owed physically blocks aircraft from departureFalse ArrestFalse imprisonment carried out by erroneous assertion of legal authority to detain another personAuthority to do a citizen’s arrest is generally limited to felonies (murder, robbery, or burglary)
50Intentional TortsBattery – harmful or offensive contact with another person without consentPunching a person, sexual contactAssault – a battery attempt that missedHe ducked when I tried to hit him
51Intentional TortsAll “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 trialCourts have held this is not double jeopardy (criminal acts)
52Negligence and Liability Negligence is the most common form of tort involved in aircraft accident litigationCommon threat running through all law is:You are responsible for the consequences of your actions.
53NegligenceNegligence 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.
54Elements of a Negligence Case A duty to be reasonably carefulA failure to be reasonable careful…Which is the proximate cause of…Injury to another person or his/her property
55Duty extends to…Anyone who might possibly be injured (or suffer harm) by your neglectMust be reasonably careful (in aviation: great reasonable care)
56Failure to use care… The jury decides if you were “reasonably careful” The jury relies upon expertsIn aviation: aviation experts, FARs, AIM, airworthiness directives, ACs
57Injury… Ordinarily, real physical injury or property damage Not just frighteningEven if you were not reasonably careful, if your act did not cause harm, you cannot be successfully sued for negligenceBut, does not relieve you from FAA Certificate action
58Proximate 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 occurredNot same thing as “NTSB Finding of Probable Cause” nor will NTSB’s opinion of probable cause be admissible as evidence at trialHowever, facts found by the NTSB investigators during the investigation of the accident will be admissible at trial
59Proximate 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 accidentWhen 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)
60Proof of NegligencePlaintiff must first present evidence to prove each of the 4 elements of negligence to satisfy the burden of proofProof is established by the preponderance of the evidence (51%) not beyond a reasonable doubt
61Negligence Degrees of care The basis of liability is negligence Great care and cautionIn aviation: all certified air carriers, A&P mechanics, air traffic controllers, airport managersOrdinary careIn aviation: charter carriersSlight careIn aviation: essentially does not applyThe basis of liability is negligence
62Negligence Per SeNegligence occurred despite FARs to prevent such accidentsLosing an FAA enforcement action can also result in losing under civil action
63Defenses against Negligence Sudden Emergency DoctrineAssumption of the riskContributory negligence
64Sudden Emergency Doctrine Stresses imposed by sudden onset of an in-flight emergency situation may interfere with human decision makingJudge 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 situationNo reduced standard if pilot negligence involvedi.e. pilot takes off with minimum fuel and then crashes can be held accountable for inadequate pre-flight inspection
65Assumption of the RiskIf 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 responsibilityi.e. non-pilot aeronautical engineer asking a pilot to conduct an intentional spin in an aircraft not authorized for spins, then crashes
66Contributing 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 liabilitySome states have adopted comparative negligenceJudge or jury provides % to eachLast clear chanceAnother example of courts trying to protect people’s health and safety
67Res Ipsa LoquiturLegal 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 negligentThe aircraft involved in the accident was within the exclusive control of the defendantWhatever happened, the accident was not caused by any fault of the plaintiffMost successfully used where airliner crashed and the cause of the crash could not be determined
68Strict 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 productsThe product is expected to be used without substantial change in the condition in which it was sold
69Strict 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 personThe above represents common law
70Organizing the Business to Limit Liability Forms of BusinessSole proprietorshipGeneral partnershipLimited partnershipLimited liability company (LLC)Corporation
71Sole Proprietorship Business is owned by a single individual That individual is responsible for:Debts of the businessTorts committed by the employeesVery high riskMeasure cost vs. benefit (being your own boss vs. risking all of your personal assets)
72General PartnershipRequired to have at least one general partner whose personal assets are at risk for business liabilitiesLimited partners have protection from personal liability (similar to shareholders in a corporation)
73Limited Liability Companies Also known as LLCsOwners have same protection against personal liability as in corporationCan possess the limited liability of a corporation and the tax treatment of a partnership
74CorporationsNo owner (shareholder) of the business takes on the added risk of personal liability for tort committed by employees or debts of the businessLLC and corporation offer best protection for investment but also have certain downfalls (i.e. tax considerations and capital requirements)
75Forming a Corporation To incorporate your business, you need: Agent for service of processArticles of incorporationSimilar to what a constitution is to a nationAfter state accepts your articles, you will be issued the certificate of incorporation
76Watch Out…The certificate itself may not be able to protect you from personal liabilityAlter 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
77Looking like a Corporation… Showing the corporate nameAdequate capitalizationMultiple ShareholdersCorporate SignatureSeparation of personal assetsMaking and documenting corporate decisions
78Duties to Employees Workers compensation insurance Unemployment compensation insurancePay agreed wageWithhold payroll taxesProvide a safe place to work
79Evading TaxesBusinesses try to avoid withholding employee taxes and paying employee benefits by considering the employee an independent contractorIRS has the benefit of hindsight review to determine the person was really an employee by using the right to control and direct testThe business may then be liable for back taxes, interest, and late charges
80Lines of DefenseOrganizing your business as a corporation or LLC should not be your entire risk management planRisk management plan must be in-depth and diversified, and should include:Accident Prevention programLiability Insurance
81Aviation InsuranceAdequate insurance should be a key feature of your risk management planDetermine the insurance needs to order the correct coverageAnalyze the policy to be sure it adequately covers your needsRecognize changing circumstances to make changes in your insurance
82Insurance Fundamentals SalesInsuring and underwriting the riskClaimsInsurance coveragesUninsured Matters
83Insurance SalesAviation insurance is sold by agents, by brokers, and directly by some insurance companiesAgents – represents one or more insurance companies as a salespersonBroker – represents you shopping around to find the best available dealDirect insurance – some companies such as Avemco sell insurance over the phone instead of through agents and brokers
84Underwriting the RiskInsurance companies – In GA, most policies are insured by a single insurance companyUnderwriters – most airline insurance policies spread the risk over several insurance companies through the process of underwriting
85ClaimsIf you have an accident, you are required by the policy to immediately report it to your insurance companyClaims on the policy will e investigated and offers extended by an insurance adjustersAdjuster represent the company in determining whether the loss is covered by the policy and the monetary value of the damages
86Insurance Principles Spreading the Risk Minimizing the Risk Insurances serves to spread the risk of that unlikely but potentially catastrophic event over many many similar operatorsMinimizing the RiskOperators perceived as being the safest are able to purchase insurance less expensively than average operators
87Aircraft Insurance Liability Coverage Hull Coverage Covers your liability for injuries to passengers in aircraft, persons and property on the ground, and other aircraftHull CoverageCovers damage to or destruction of the insured aircraft resulting from an accidentHull coverage may be purchased to cover all risk, all risks while not in flight, or all risks while not in motion
88Purpose of UseAnother choice you will have to make when order aircraft insurance coverage is the purpose of use of the aircraftPleasure and businessIndustrial aidLimited commercialCommercial except instruction or rentalCommercialSpecial uses
89Pleasure and Business Generally covers: Pleasure flying and personal flying incidental to or in direct connection with the insured’s businessexcluding any operation for which a charge is made
90Industrial Aid Generally includes everything covered by pleasure and businesstransportation of your business’s executives, employees, guests, and customersExcluding any operation for which a charge is made
91Commercial Except Instruction and Rental Generally includes:All uses covered by pleasure and businessAll uses covered by industrial aidThe transportation of passengers or cargo for hireExcluding commercial flight instructionExcluding rental of the aircraft to other pilots
92Limited Commercial Generally includes: All operations covered by pleasure and business and industrial aidCommercial flight instruction and aircraft rental to other pilotsExcludes carrying passengers or cargo for hire
93Commercial Generally referred to as full commercial Generally covers: Pleasure and businessIndustrial aidCarrying passengers and cargo for hireCommercial flight instructionRental to other pilotsThe is the coverage needed by a full-service FBO
94Special UsesFlight operations considered at a higher level of risk must pay a higher premiumThese operations include:Agricultural aviation operationsOperations requiring an FAR waiverAerial fire fightingHelicopter external-load operationsHelicopter flight trainingBanner and glider towingFish spottingPower line or pipeline controlEmergency medical service helicopter ops
95Pilot QualificationsThe premium you pay for your aircraft insurance policy varies inversely with the minimum qualifications of the pilots who will be permitted to operate the aircraftYou must make sure to never allow a pilot who does not meet the pilot qualification requirements of your insurance policy to operate the aircraft
96Airport Liability Insurance If your business is located on an airport, you will need airport liability insurance, including:Premises liabilityHangarkeeper’s liability
97Premises LiabilityThis covers injury to nonemployees occurring at your place of businessAny business, no matter where it is located, should have premises liability coverage
98Hangarkeeper’s Liability This insurance covers your liability for damage to other people’s airplanes while they are in your car, custody, or controlIn-flight hangarkeeper’s covers any damage the customer’s aircraft may suffer during operations by your employees
99Product Liability Insurance This type of insurance is needed by all businesses that perform aircraft inspection, maintenance, or modification, or supply aircraft parts, fuel, and lubricantsThis 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
100Prepaid 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
101Loss 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
102Excess Liability Coverage Also referred to as an umbrella policyThis insurance becomes available to pay liability claims only after all other applicable policies have paid to their policy limitsFor 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
103ClaimsThe 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 limitThe 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
104SubrogationThe right to pursue any claims the insured might have against someone else who caused or contributed to the cause of the accidentComes into play most frequently in the case of rented aircraftBusinesses that wish to protect their customers from subrogation may do so by purchasing a waiver of subrogation endorsement on the policy
105Uninsured MattersSome aviation activities you cannot purchase liability insuranceLiability insurance Is not available for:Bodily injury to skydivershot-air balloon bungee-jumping operationsThe operator may obtain a measure of protection through exculpatory contracts
106Exculpatory 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
107Exculpatory Contracts, Con’t. An exculpatory contract is appropriate only when:The operations is not a common carrier operationThe activity is not one in which the law requires the operator to carry liability insuranceInsurance is not available to the operator
108Exculpatory 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
109Exculpatory 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 operationFreely and voluntarily chooses to incur that risk
110Exculpatory Contracts, Con’t. The most effective form of the document requires:The person giving up the right to sueTo read it carefullyTo leave a trail of crossings-out and initials throughout the document to indicate having read and understood the document
111Exculpatory Contracts, Con’t. Each contract should be handcrafted by your lawyer for your specific operationBy using “generic” contracts, the documents do not provide you with the maximum available protectionThe 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
113FAA EnforcementThe 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 attorneyThe purpose is NOT to critique the FAA nor its’ employees (our fellow aviators)
114FAA 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.
115FAA EnforcementNationwide 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.
116FAA Enforcement Indianapolis FSDO FY 2002 Statistics 84 Violations Total48 Air Carrier (Most MX Related)36 General Aviation2 MX related, 4 Operations related, 6 Accident relatedMost of these were paper-related violations
117FAA Enforcement Indianapolis FSDO FY 2002 Statistics 30 Violations (of the 84) from Air Traffic Systems2 Air Carrier, (1 Rwy Incursion, 1 Pilot Deviation -Alt)General Aviation28 General Aviation Aircraft Violations14 TFR Violations4 Airspace7 Pilot Deviation2 Restricted Airspace1 Low Flying
118Administrative LawAviation 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’sFAR’s authorized by Title 14 of the code of regulations which address every conceivable body of aviationAC’sAD’sHandbooks
119FAA Enforcement: Broad in scope Certification of PeoplePilots, flight engineers, controllers, navigators, mechanics, dispatchers, inspectors, parachute riggers, ground/flight instructorsPlacesAirportsThingsFlag carriers, supplemental carriers, air travel clubs, helicopter ops, air tax service, ag aircraft, pilot, controller, dispatcher training, repair stations, maintenance schools
120FAA EnforcementWhen 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 violatorAdministrative law rather than criminal law (in most cases)Honesty always pays with the FAA. Nothing infuriates the FAA more than dishonesty.
121FAA EnforcementRule #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.
124Administrative 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.
126FAA Enforcement: Letter of Correction FAA issues to correct defecti.e. bad ELT battery on aircraft.In light of corrective action taken by you the FAA will not pursue other actions.
127Letter of Correction Remedial training possible if FAA agrees See training as necessary if pilot has constructive attitudeYour flight was not for hireYou have a clean recordNot for lack of lack of qualificationViolation was not deliberate, grossly negligent, or criminal intent
128Letter of Correction Does not include a testing component (normally) After completion of training, you are off the hookIf 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 CityAutomatically removed after two years
132Civil PenaltiesFAA 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 companiesIndividual fines - $1,000 per violationBusinesses - $10,000 per violationFalsification of records to anyone is up to $250,000i.e. maintenance records, etc.Most incident incur multiple FAR violations, some include miscellaneous charges such as FAR – Careless or reckless operation or fining air carriers for multiple departures.
133Summary of Seizure of Aircraft FAA EnforcementSummary of Seizure of Aircraft
134Summary 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.
136Airman 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.
138InvestigationsFAR 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:AirportsPart 135 Air-TaxiPart 121Air Traffic ControllersSecond highest source for violationsGeneral Public
139FAA InspectorRule #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 admissibleCourts have held that investigations dealing with aviation are not criminal and thus, absence of the “Miranda Rights” are “merely administrative in nature”.
140FAA 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.
141FAA 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.
142FAA 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.
143FAA InspectorWhat if the inspector continues his pressure to uncover information without a lawyer present?You have two choices: both unpleasantDon’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!
144First 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.
146Displaying DocumentsFAR 61.3(h) and 61.51(d) requires you to present your:Airmen certificateMedical certificateLogbookTo whom?Any FAA, NTSB, or any State or local law enforcement officer upon reasonable request.
147Displaying DocumentsYou 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 (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.
148Displaying 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.
149Aircraft InspectionWhen and if a FAA inspector wants to board an aircraft:If you are Part 135/121, you must let them in upon requestOtherwise, don’t let them inShould 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
150Prosecution and Appeal Process Airmen CertificatesProsecution and Appeal Process
151Prosecution 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.
152FAA Certificate Action Notice of Proposed Certificate ActionExpect 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.
153Informal ConferenceRemember 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 AttorneyFAA InspectorYou AND your attorney
154Informal ConferenceThey 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.
155Informal ConferenceThe 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.
156Order 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.
157Order 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 FARYou 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
158NTSB 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-job-training!
159Order 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!!
160NTSB AppealAs 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.
161NTSB AppealDiscoveryYour 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.
162The HearingTrial-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.
163NTSB 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.
164The 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.
165Appeal 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.
166Appeal 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.
167Appeal 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!)
168Surrendering 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.
169Emergency 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.
170Getting 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 reclassificationIf ATP Falsification; don’t go there.Forever. Why? ATP’s must be of good moral character
171Clearing your recordA FAR violation places your record at a competitive disadvantage.You may experience an increase in insurance costsYou may not be insurable.Administrative letters automatically removed after 1 yearYeah, 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.
172Section VI The NASA Report Immunity from Sanction
173NASA 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.
174NASA Report There are 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.
175NASA 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.
176NASA ReportWhen 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 daysThe FAA can issue an order to make the violation a part of your airmen records (appealable)
177NASA ReportFile 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.
178NASA ReportWhen 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….
179NASA 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.
180NASA 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.
182Aviation MedicalsThe 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.
183Aviation MedicalsYou must hold a current FAA medical certificate in order to serve as a pilot or air traffic controllerFAA oversight is increasing due to the vast sums of data readily available via computer filesFAA scans driving record files through the National Driver Registry data file on traffic violations
184Revocation of Medicals Many people give up their medical certificate without a fightDon’t take no for an answerThe FAA can be persuaded to re-instate your medicalIf not, the NTSB can order the FAA to re-issue or issue your medical certificate
185FAA Health StandardsStandards 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?
186Disqualifying Conditions If the flyer has a history or diagnosis of any of the followingDiabetes (requiring insulin or hypoglycemic medication for control)Heart attackAnginaAbnormal EKG or evidence of coronary artery disease
187Disqualifying Conditions, Con’t. PsychosisEpilepsyAlcoholismDrug addictionDisturbance of consciousness without explanationCharacter or behavior disorder that repeatedly manifested itself by overt acts
188Special Flight TestsThese 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)
189Special IssuanceShould one or more of the 10 specifically disqualifying conditions exist, then you can request special evaluation and receive a medical certificate through special issuanceBurden is on you and your Aeronautical Medical Examiner (AME) to convince the FAA that you are an acceptable risk to flight safety
190Medical Reconsideration If your AME denies you, appeal to the FAA at Oklahoma CityIf 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!
191Truth or ConsequencesFAA medical certification is an honor system, depending on your truthfulnessTo falsify an FAA form, it is both an FAR violation and a felonyFAA 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
192Required ReportsYou 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 occurrenceIn Indiana, a DWI automatically and immediately results in a suspension of your drivers license and must be reported under FAR
193Drug and Alcohol Testing Mandatory drug and alcohol testing has become a routine requirement throughout the aviation industryRefusal to submit to a mandatory drug or alcohol test is grounds for suspension or revocation of your pilot certificate
194Get HelpAn attorney who is knowledgeable in FAA medical certification procedures can be a tremendous help in evaluating your situationTo read more on FAA aviation medical certification standards, see FAA Medical Certification: Guidelines for Pilots by Dr. Richard O. Reinhart
195ReferencesCohen, 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.
196Attorney 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)
197Great Video References The Kindler, Gentler F.A.A. – The Myth or How to Protect your Pilot’s LicenseThe NASA Form and Pilot ImmunityRamp CheckEach available from:Alchemy Video Production Corp.POB 29569New Orleans, LAor
198Your Speaker Professor Gregory L. Schwab, Ed.D. (ABD) Department of Aerospace TechnologyIndiana State UniversityTerre Haute, IN 47834