Transcript Aviation Law - Indiana State University

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:
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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 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
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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
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Sole proprietorship
General partnership
Limited 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…
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Showing the corporate name
Adequate capitalization
Multiple Shareholders
Corporate Signature
Separation of personal assets
Making and documenting corporate
decisions
Duties to Employees
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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
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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 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
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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:
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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:
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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 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 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.
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