AOPA Pilot Magazine - January 2015 - 24

PILOT COUNSEL

Defining airworthiness

BY JOHN S. YODICE

What are the conditions for safe operations?

JOHN S. YODICE

provides legal
counsel to AOPA
members through
Pilot Protection
Services.

24 | AOPA PILOT January 2015

A RECENT OPINION of the NTSB in an FAA enforcement
case illustrates the sometimes convoluted concept of aircraft "airworthiness."
The basic airworthiness rule for pilots is FAR 91.7:
"(a) No person may operate a civil aircraft unless it is
in an airworthy condition. (b) The pilot in command of
a civil aircraft is responsible for determining whether
that aircraft is in condition for safe flight. The pilot in
command shall discontinue the flight when unairworthy
mechanical, electrical, or structural conditions occur."
The FARs do not define "airworthy condition" or
"unairworthy." Rather, this basic rule is elaborated by
NTSB. "Longstanding board precedent holds that an
aircraft is in an airworthy condition if it (1) conforms to
its type certificate and applicable airworthiness directives, and (2) is in a condition for safe operation. Both
parts of the standard must be met to conclude an aircraft
is airworthy; therefore, 'to prevail on an airworthiness
charge, the [FAA] administrator need only prove the aircraft fails to meet one of the two [parts].'"
One of the quirks of NTSB's elaboration is that most
pilots have never seen the type certificate applicable to
the aircraft he or she flies, nor are type certificates readily available to pilots. What makes this case interesting
is that the NTSB's opinion inexplicably only involves
the second part of the airworthiness standard-i.e. in a
condition for safe operation"-and does not deal with
the requirement for type certificate conformity. So, in
this case the board articulates a more reasonable rule
for pilots. "A finding of violation based on the second
part of the standard is appropriate if the weight of the
evidence shows the pilot 'knew or should have known'
that the aircraft was not in condition for safe operation."
In this case the FAA charged a pilot with flying his
Beechcraft Bonanza when it had a known electrical
fault. As a result, the FAA ordered his private pilot certificate suspended for 90 days. The pilot appealed the
suspension to the NTSB. At a hearing before an NTSB
law judge, the pilot gave his account of the incident. He
testified that during a departure from an airport (let's
call that the first airport), he noticed that the multifunction display in the cockpit begin to flicker. Being unable
to resolve the flicker, he notified air traffic control of his
problem, and diverted to a nearby airport (let's call that
the second airport). Things got worse. The airplane's
electrically operated landing gear and flaps would not
extend normally. The pilot was successful in manually

extending the gear, making a low pass over the field for
ground observers to confirm that the gear was down,
and then landed without further incident.
What happened next is a matter of some dispute.
According to the pilot, after landing he had the local
maintenance shop check things out. With the engine
running, two mechanics visually inspected the engine
compartment and the cockpit instruments. They could
find nothing wrong. The pilot asked if it was safe to fly
the airplane back to his nearby home base. He was told,
"It's a VFR day; there is no reason why you can't make
it." Before taxiing for takeoff and during run-up he tried
to replicate the electrical fault. Everything read normal.
The pilot then flew the airplane to its home base (the
third airport). At the home base, a director of maintenance and a mechanic performed three run-ups before
replicating an electrical fault on the fourth run-up. Out
of precaution, because of their inconclusive checks,
they replaced the aircraft's main alternator which they
guessed could be the problem.
The second airport's mechanics testified to a different version. In the presence of their director of
maintenance, the two mechanics testified that while
they didn't specifically recall the pilot or his aircraft,
they would never tell a customer an airplane was safe
for return to service without generating documentation.
On this record, the law judge affirmed the FAA's
order of suspension. The pilot then appealed to the
full five-member NTSB. The full board remanded the
case back to the law judge for further proceedings.
"The mere fact respondent ultimately had to have the
alternator replaced does not conclusively establish the
existence of an unsafe condition during the flight from
the [second airport] to [the third airport], in view of evidence that the airplane's electrical system functioned
normally after startup on the ground at [the second airport] and that multiple troubleshooting attempts [at the
third airport] were required before mechanics detected
an electrical issue.... We therefore remand the case to
the law judge for more explicit factual findings on the
issue of whether, in fact, an unsafe condition persisted
during the flight from [the second airport] to [the third
airport]."
We will await the ultimate result of this case, but
the decisions so far have a lot that is instructive. AOPA
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AOPA Pilot Magazine - January 2015

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