In a recent NTSB case, Administrator v. Nemeth, the Board affirmed an ALJ’s finding that an airman violated FAR’s 91.13(a) (careless and reckless), 91.123(a) and (b) (deviation from ATC clearance and instruction), and 91.175(a) (take-off and landing under IFR), when he improperly executed an instrument approach into the Jackson Hole Airport. Although the airman was cleared to perform the ILS 18 approach, the aircraft skipped one of the approach fixes, flew through the final approach course and then executed a climbing right turn contrary to the published missed approach procedure.
At the hearing, the airman and his copilot testified that the aircraft’s IMC flight toward the improper approach fix was “perhaps because of an error or malfunction involving the FMS” and that when it became apparent that they wouldn’t be able to capture the final approach course, they executed the non-prescribed climbing right turn to avoid high terrain. The ALJ did not buy it and affirmed the FAA’s findings of violations and 60-day suspension.
On appeal, the Board deferred to the ALJ’s credibility determinations regarding the airman’s and copilot’s testimony. Additionally, the Board observed that at no time did the airman advise ATC of his non-standard maneuvers or that he was experiencing an equipment malfunction or emergency. Further, the Board affirmed the ALJ’s ruling that the airman waived his emergency defense when he failed to raise emergency as an affirmative defense in any of his pleadings.
The Board also rejected the airman’s argument that a 60-day suspension was excessive, noting that “contrary to respondent’s claims, this incident was not a ‘subtle deviation,’ but, as respondent’s own testimony makes clear, a dangerous lapse in airmanship.”
Although this appears to be an unfortunate outcome for the airman, the non-standard procedures in IMC conditions into the Jackson Hole Airport could have resulted in far more severe consequences. Also, it appears that if in fact “emergency” was a legitimate defense for the airman, he certainly should have advised ATC to that effect at the time and then preserved the defense in his pleadings.