The case of Administrator v. Lakhram was recently issued and it reinforces the NTSB’s position that an airman’s claim of an in-flight emergency as a defense in an enforcement action must be supported by sufficient facts to persuade an administrative law judge that the emergency existed and excused the airman’s conduct. In this case, the airman was operating a Part 121 passenger flight. When the flight departed Runway 28R from Pittsburgh International, instead of flying the Pittsburgh Six departure and flying the runway heading straight out, shortly after rotation the airman turned left away from that heading and passed over active runways and the PIT terminal at an altitude below 500 feet.
As you might imagine, the FAA was informed of the flight’s deviation and it subsequently intiated a certificate action seeking to suspend the airman’s certificate for 120 days alleging that the airman’s conduct violated FAR’s 91.123(a)(compliance with ATC clearance) and 91.13(a)(careless and reckless). The airman appealed arguing that his deviation was excused because it was the result of wake turbulence from a B-737 that took off in front of him. After a hearing, the administrative law judge affirmed the FAA’s order of suspension, but reduced the suspension from 120 days down to 90 days. The airman then appealed to the full NTSB.
Initially, the Board noted that to in order to defend against an alleged violation of FAR 91.123(a) “a deviation from a clearance requires at least one of three things: an amended clearance; a TCAS alert; or a valid emergency. Respondent had no amended clearance and no TCAS alert.” It then discussed the airman’s claim that an emergency existed. The Board noted that an emergency does not need to be declared. However, FAR 121.557(c) requires that an airman in that situation needs to “keep the appropriate ATC facility and dispatch centers fully informed of the progress of the flight” and “shall send a written report of any deviation through the certificate holder’s operations manager, to the Administrator.” Unfortunately, the airman did not inform ATC regarding the alleged emergency nor did he file the required report regarding his deviation.
Further, the airman was unable to rebut the testimony of three FAA inspectors who all testified regarding the airman’s deviation. The co-pilot for the flight was unable to persuasively corroborate the alleged encounter with wake turbulence and although the airman presented expert testimony on the issue, the airman’s expert did not observe the flight and did not have sufficient data to confirm or prove the nature or magnitude of the wake turbulence. As a result, the Board concluded that it had no difficulty finding that the hearing record contained a preponderance of reliable evidence to substantiate the ALJ’s decision.
This is a tough case for the airman. Although it is quite likely that the flight encountered something that made the airman deviate from his clearance, unfortunately the airman did not take the steps required by the FARs after a deviation resulting from an emergency. Additionally, the airman did not provide as thorough and persuasive of an explanation for the deviation as he needed to persuade the ALJ. Fortunately for the airman the sanction was a suspension rather than a revocation.
