It’s a beautiful day. You are sitting in a chair outside your favorite FBO at the local, uncontrolled airport watching the traffic. An aircraft is taxiing onto the ramp towards an aircraft that is poorly parked too close to the taxiway line. From your perspective, it looks like it will be close, but you can’t tell for sure whether the taxiing aircraft has enough room to pass the parked aircraft. The next thing you hear is the unmistakable sound of metal scraping against metal. Not good.
Fortunately, this situation doesn’t occur too often. However, it does happen. A recent enforcement case involved this very scenario. In Administrator v. Smith, an airman was taxiing his Cessna 210D aircraft equipped with Flint Aero tip tanks following the taxiway lines. At the time, the tail cone of a Citation XL extended approximately four feet over the line delineating the perimeter of the taxiway. The Cessna 210 collided with the Citation’s tailcone resulting in a scratched area on the Cessna’s wing tip/tip tank.
Shortly after the collision, the airman allegedly inspected the Cessna and observed that the wing tip/tip tank merely had a paint scratch. Believing that the Cessna was in an airworthy condition despite the collision, the airman then flew the aircraft to his home airport. At some point thereafter, the FAA became involved.
After investigating, the FAA issued an order seeking to suspend the airman’s private pilot certificate for 60 days based upon alleged violations of 14 C.F.R. §§ 91.7(a) (operating an aircraft in an unairworthy condition), and 91.13(a) (careless and reckless). The airman appealed the order and a hearing was held before a National Transportation Safety Board administrative law judge (“ALJ”).
At the hearing, the FAA argued that after the collision the Cessna was not airworthy because it did not conform with its type certificate until someone inspected it and compared it to the Cessna manual to confirm that it did, in fact, conform to the type certificate. Ironically, both of the FAA inspectors who testified at the hearing admitted they did not review the Cessna’s type certificate or the supplemental type certificate (“STC”) applicable to the Flint Aero tip tanks to determine whether the Cessna complied with its type certificate.
The airman argued that the STC was a modification to the Cessna’s original type certificate and, as a result, it was necessary to actually review the aircraft’s type certificate, as modified by the tip tank STC in order to determine whether the aircraft was unairworthy under § 91.7(a). However, the ALJ disagreed and held the airman should have had the aircraft inspected after the collision before flying it.
As a result, he concluded that the airman was aware of the potentially unsafe condition when he operated the aircraft after the collision in a violation of § 91.7(a). The airman then appealed to the full Board arguing, among other things, that the FAA did not meet its burden of proving the § 91.7(a) violation.
The Board initially observed that the FAA may prove a § 91.7(a) violation by either showing that (1) an aircraft did not comply with its type certificate or (2) the aircraft was not in a condition for safe operation. With respect to the first prong of the test, the Board noted the absence of the Cessna’s type certificate, type certificate data sheet, applicable airworthiness directives, or STCs in the record and the lack of testimony that the FAA inspectors reviewed those documents to determine whether the Cessna complied with its type certificate or STCs.
Regarding the second prong, the Board cited its precedent which allows the FAA to simply prove whether the airman “knew or should have known” the aircraft was not in a condition for safe operation, rather than proving the airman had “actual knowledge” that the aircraft was not in a condition for safe operation. It also noted that “a collision resulting in visible damage further requires an aircraft to undergo an inspection to ensure its continued airworthiness.”
The Board then concluded that the damage to the Cessna constituted both actual and implied knowledge on the airman’s part that an inspection was necessary. However, that wasn’t the end of the story. The Board then determined that the absence of the type certificate or substantive testimony on either of the two requisite prongs of the airworthiness test meant the FAA had only shown the aircraft “might not have been” in a condition for safe operation.
The Board stated “[a]t this juncture, it is not clear to us that the Administrator fulfilled his burden in this regard by proving either the aircraft did not comply with its type certificate or was not in a condition for safe operation.” As a result, the Board remanded the case to the ALJ asking him to provide specific factual findings to support his conclusions of law that the aircraft was not in a condition for safe operation.
What can we learn from this? Well, if you are ever involved in a situation that results in visible damage to your aircraft, even if it appears to be only scratched paint, the safe/conservative approach is to have an A&P inspect the aircraft and sign off on its airworthiness. Yes, this may cost a little money. However, it will be a lot less money than you would otherwise have to spend defending yourself in an enforcement action. And, if the FAA comes knocking alleging that you knew or should have known of a potentially unsafe condition, and you know the FAA will, you will have proof to the contrary.
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