AOPA Turbine Pilot Magazine - July 2021 - 28

FOR THE RECORD
If it's broke, fix it
A safe landing doesn't mean you're clear of legal trouble
A PILOT EXPERIENCES AN IN-FLIGHT equipment malfunction
but skillfully prevents an abnormal situation
from becoming an emergency and lands safely. A
few days later, an FAA inspector contacts the pilot to
request a statement about the event along with a copy
of relevant maintenance records. AOPA's Legal Services
Plan often hears from pilots in this situation.
If an unairworthy mechanical, electrical, or structural
condition occurs, FAR 91.7(b) requires the pilot in
command to discontinue the flight. This means landing
at the first available airport consistent with safe operations,
even if it does not have services. For flights in
controlled airspace under IFR, FAR 91.187 also requires
the PIC to report as soon as practical to ATC any malfunctions
of navigational, approach, or communication
equipment. If an in-flight emergency requires immediate
action, FAR 91.3(b) allows the PIC to deviate from
the FARs to the extent required to meet that emergency.
Immediately following the flight, determine
whether the malfunction triggers any of the reporting
requirements under NTSB rules or the FARs. 49 CFR
830.5 specifies 12 " serious incidents " that require immediate
notification to the NTSB, including but not limited
to a flight control system malfunction or failure; in-flight
fire; or a complete loss of information from more than
50 percent of certain displays. If the PIC deviated from
any rules under FAR 91.3(b), a written report must be
submitted, but only if requested by the FAA.
Often it's after landing that some pilots get into
legal trouble by deciding to fly the aircraft again without
realizing the aircraft is in a potentially unairworthy
condition. This might be because the malfunction seems
insignificant, the pilot can't replicate it on the ground,
or a mechanic isn't on site. FAR 91.7 prohibits operation
of an aircraft unless it's airworthy, meaning the aircraft
complies with its type certificate, including any supplemental
type certificates and airworthiness directives,
and is also in a condition for safe operation. So even
though an aircraft is flyable, it may not be airworthy.
If a pilot is alleged to have flown an unairworthy
JARED ALLEN
is managing
attorney for AOPA's
Legal Services
Plan and is an
instrument-rated
private pilot.
28 | AOPA PILOT July 2021
aircraft, the FAA need only show that the pilot knew or
should have known that it didn't comply with its type
certificate or that it was in an unsafe condition. In one
case, the PIC of a Cessna 150 didn't know with certainty
that a broken carburetor heat cable rendered his aircraft
unairworthy, but it was found he should have known of
the necessity of carburetor heat to the proper and safe
BY JARED ALLEN
operation of the aircraft. Even though he thought carb
heat was not necessary on the 90-degree day and the
flight was uneventful, the POH required full carburetor
heat before landing.
Following an equipment malfunction, consider
grounding the aircraft until it can be inspected by a
mechanic, evaluating whether the inoperative equipment
can be addressed under FAR 91.213, or obtaining
a special flight permit to relocate the aircraft. If maintenance
is necessary, comply with FARs 91.405 and 91.407,
which require, among other things, that the aircraft be
approved for return to service by an authorized person
and the required maintenance record entry made. Even
if a problem cannot be replicated, don't fly off without
a record of what was done in hand-it can be on a separate
piece of paper-because it will almost certainly be
requested if the FAA learns of the event.
But how are FAA investigations triggered, especially
if the pilot wasn't required to report it? Often,
it's by air traffic controllers, who are required to file
" mandatory occurrence reports " (MORs). Any " abnormal
event, other than an incident or accident, " can be
considered an " occurrence " for which ATC must file
an MOR ( " Abnormal Findings, " March 2021 AOPA
Pilot). In other cases, airport managers or FBOs have
advised the FAA about such events.
Regardless, if the decision is made to investigate the
matter an inspector will typically contact the PIC by
phone or letter, or if the PIC has not been yet identified,
the aircraft's registered owner. The inspector will likely
request a written statement detailing the event, along
with a copy of any associated maintenance record entry.
Assuming there are no other compliance issues with
the flight, the matter will likely be closed once the statement
and any required documentation are provided.
A safe approach following a flight that experiences
an equipment malfunction is having it addressed by
an appropriately certificated mechanic and obtaining
a maintenance record entry prior to continuing
operation. Out of an abundance of caution, it's a good
idea to file a NASA ASRS report within 10 days of the
flight, and to call the AOPA Legal Services Plan before
responding to any FAA inquiries.
AOPA
EMAIL jared.allen@aopa.org
The AOPA Legal Services Plan is offered as part of
AOPA's Pilot Protection Services (aopa.org/pps).
http://www.aopa.org/pps
AOPA Turbine Pilot Magazine - July 2021

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