A recent civil penalty case discusses the FAA’s position regarding an aircraft owner or operator’s responsibility with respect to the airworthiness of an aircraft subject to recurring airworthiness directives (“AD’s”). In In the Matter of: Ace Pilot Training, the FAA filed a complaint alleging that Ace operated a Mooney M20C and two Piper PA-28’s when certain AD’s had not been completed in violation of FAR 39.3(prohibiting operation of aircraft when ADs are incomplete) and FAR 91.13(a)(prohibiting careless or reckless operation of an aircraft). The FAA sought a $30,000 civil for the alleged violations. Ace’s defense was that the repair station to which it delegated the maintenance of the aircraft was responsible for AD compliance and any violation for failure to comply.
At the hearing, the adminstrative law judge (“ALJ”) found that Ace had violated FAR 39.3 in one instance, but the ALJ dismissed the other claimed violations on the ground that Ace did not have actual knowledge that it was about to operate the aircraft past the deadlines for the ADs. The ALJ also held that the FAA had not proven that Ace violated FAR 91.13(a).
The FAA then appealed to the Administrator, who decides civil penalty appeals. (Yes, to most people this appears to be a conflict of interest, but that is a discussion for another day.) The Administrator determined that “Ace had a responsibility, independent of the repair station’s responsibility, to know when the ADs were due and to ensure that they were completed on time” and “that, absent extraordinary circumstances, operating an aircraft out of compliance with an AD not only violates the regulation requiring compliance with ADs, but also violates the regulation prohibiting careless or reckless operation.”
In discussing the owner’s responsibility, the Administrator stated that “Ace had a responsibility, independent of the repair station’s responsibility, to know when its ADs were due and to make sure they were completed on time and were properly recorded,” basing this upon the mandate in FAR 91.403(a) that the owner or operator is “primarily responsible” for maintaining the aircraft in an airworthy condition. Although the owner or operator doesn’t have to do the work, the owner or operator must check and maintain the aircraft’s records to ensure that the work has been completed and properly logged. The Administrator went on to note that it is not an unfair burden to require owners and operators to know which ADs apply to their aircraft and to bear primary responsibility for timely AD compliance because the “AD’s are publicly available, free of charge, on the FAA Internet website.”
With respect to the FAR 91.13(a) violations, the Administrator relied upon existing precedent which holds that absent extraordinary circumstances, careless or reckless operation of an aircraft follows as a residual violation once the FAA establishes operation of an unairworthy aircraft. She then concluded that Ace acted in a careless or reckless manner because its failure to comply with the AD’s jeopardized the safety of both its student pilots and others. The Adminstrator also increased the ALJ’s $500.00 civil penalty up to an $8,000 civil penalty.
Although this seems like it bestows an onerous burden upon aircraft owners and operators who are not maintenance savvy, the case is consistent with FAA enforcement cases that place the burden of aircraft airworthiness squarely on the shoulders of the aircraft owner or operator. Interestingly, it appears to be inconsistent with the case law within some states holding that an aircraft owner or operator can delegate maintenance of an aircraft to a non-owner. Unfortunately, these “delegable duty” cases typically arise within the context of aircraft accident cases, which do not have any precedential weight in enforcement actions. Thus, although an aircraft owner or operator may be able to delegate their duty to maintain the aircraft in an airworthy condition to a third-party, and thereby potentially avoid liability in the context of a civil lawsuit, the delegable duty defense will not help in an FAA enforcement action. Like it or not, from the FAA’s perspective the owner and operator of an aircraft will continue to be the first and last stop for airworthiness issues.
