April 2016 Issue
Operational Blunders: Protecting Yourself
You’ve just damaged an airplane and probably violated at least one of the FARs. All is not lost. Here’s what to do to assure the best possible outcome.
The day had started out so well. You flew out to meet with a client and wrapped up a big sale. On the way home you got some time in the clag and shot an approach to your non-towered home field. You broke out well above minimums and easily spotted the runway. But then, somehow, you didn’t handle the crosswind during rollout and went swerving off the runway into the grass. To make matters worse, just before you got the airplane stopped the nose gear hit a hidden storm-drain cover and collapsed.
You shut everything down and crawled out, pretty disgusted with yourself. Looking at the bent prop and nose damage, you remember that Part 830 of the NTSB regulations defines a reportable aircraft accident. This clearly isn’t enough damage to qualify, so you know you don’t have to report this to any federal agency. You know you have good insurance, so you’ll call your agent first thing and you’ll talk with the FBO about getting the airplane moved into your hangar where it will be protected from the elements until repairs can get started.
About then people start showing up, asking if you’re OK. Two of them show you FAA identification—they’re inspectors who were at the airport restaurant and saw the whole thing. They, very politely, say they’d like to talk with you about what happened at some point—and they’ll want to see your logbook and the airplane’s logs.
Three days later you meet with them, talk about the incident and they look through the logs and your certificates. All of your stuff is in order—flight review, medical, instrument currency. Your airplane has a current annual, but, whoops, somehow you’d let the transponder and pitot-static checks lapse—you’re in violation of FAR 91.411 and 91.413.
How can this happen? Can the FAA step in and inspect you and your airplane after an event that didn’t even qualify as a reportable accident? What can you do to protect yourself from winding up with a violation? Will your insurance company pay if you violated a reg?
We’ll answer all of these questions and take an in-depth look at the more common operational blunders pilots make, how the FAA responds, how to avoid bringing yourself to the FAA’s attention, what protection you can have in place should you bring yourself to the FAA’s attention and whether your insurance company is going to try to deny a claim if you bust a reg and have an accident.
The FAA was tasked by the Federal Aviation Act of 1958 to, among other things, scrutinize aviation for the purpose of safety. An FAA inspector has the authority to ask pilots and aircraft owners to produce their certificates and logbooks for inspection. Most often that comes about during a ramp check (although it’s unusual for the inspector to ask to look at logbooks), and it is normal any time there is an accident or an incident that comes to the attention of the FAA.
If you have an accident and report it to the NTSB (by regulation, that’s the agency to which aircraft accidents are to be reported), the NTSB then tells the FAA. Almost invariably an FAA inspector is assigned to get involved with the investigation. That inspector will ask to see all certificates and logbooks. Under the regs, the pilot and owner must make them available for review.
That means that you shouldn’t rush to call the NTSB if you have a fender-bender event with your airplane—and that includes a gear-up landing. If the event doesn’t meet the definition of an accident under Part 830 of the NTSB regs, there is absolutely no requirement to report it to the NTSB. The definition of an accident includes fairly severe damage—and gear-up landings almost never generate enough damage to be a reportable accident. In fact, the definition appears to have been created with an eye to not saddling the NTSB with investigating gear-up accidents. They don’t want to hear about those; they’re already plenty busy.
Unfortunately, if someone does get excited and call the NTSB (or FAA) after you clip a runway light, you can’t stop the inspector who is assigned to your incident from demanding your certificates and logbooks by pointing out the event wasn’t a reportable accident—you’re in the crosshairs. So, think before you make a phone call.
The most common way to come to the FAA’s attention is via the most common, non-fatal accident for general aviation airplanes—runway loss of control (RLOC). If you lose it in a crosswind, scratch the airplane and someone tells the FAA, you get to produce certificates and logbooks and have an FAA inspector ask you a lot of questions.
The second most common way to invite unwanted attention from the FAA is to make a mistake when ATC is involved—not follow a clearance, bust an altitude or enter Class B airspace without a clearance. Neck and neck with those blunders is inadvertently flying into a TFR.
A close third is to do something stupid with an airplane where people can see (and photograph) you. Coming up rapidly on the outside for ways of generating FAA attention is making a video of yourself doing something stupid with an aircraft and posting it on social media. The biggie on these is low flying/buzz jobs/scud running. Everyone has a cellphone camera. Not everyone thinks a low-flying airplane is cool—and a certain percentage of the population sees a low-flying airplane and thinks, “terrorist attack.” We’re serious; some people become terrified.
If you do a buzz job and someone complains to the FAA, the FAA is required to investigate. If there is a photo or video that helps identify your airplane, the FAA’s workload in proving a violation against you drops off dramatically. The FAA can, and will, subpoena the data from any GPS device in your airplane and use it against you in a violation action.
If you are one who feels the need to fly low, we suggest you do it where there are very few people who might see you.
We are aware of situations where pilots had decided to continue flying after their medicals had expired or they’d lost their medicals and were turned in because someone who knew about it got mad at them and called the FAA. Compliance with the FARs is almost entirely on the honor system—reduced to its essence, the FAA trusts you to do the right things when you fly. When a pilot violates that trust intentionally, the FAA will come down hard. Based on our experience and conversations with aviation attorneys and FAA inspectors, flying without a medical and falsifying logbooks are two effective ways to have the FAA lower the boom on yourself.
Violations and Catches
Under the Pilot’s Bill of Rights law, the FAA has to tell you when it is investigating you for a possible violation of an FAR. While you are required to present your certificates and logbooks, you do not have to speak with the FAA or provide a written statement—and if you do so, anything you say or write can be used against you in a violation action.
We strongly recommend that following any sort of an accident or incident, or if you receive notice that the FAA is investigating you, that you speak with an aviation attorney before you talk with the FAA.
The overriding element in deciding whether you should talk to the FAA if there is a risk that you were in violation of a regulation is whether that talk will help or hurt you. You must decide, as objectively as possible, if talking to the FAA can improve things for you.
In the past, the answer was often no, as the FAA often had the goods on you from radar data of an altitude bust, ATC tape of you not complying with a clearance or a photo of you flying under a bridge and smiling for the camera.
As of last summer evaluating the “can I make this better” question changed for what we think is the better. The FAA changed its policy on pilot enforcement—it wants more matters resolved at the FSDO level, not elevated to an enforcement action to be handled by FAA lawyers. FAA Order 8000.373, issued June 26, 2015, sets out the new FAA policy of having well-intentioned pilots who inadvertently violate a regulation go through retraining and education rather than nailing them with a violation and suspension of their certificates. That, of course, doesn’t apply to the pilot who intentionally flew under the bridge after saying something along the lines of “Y’all watch this.”
We think that is great. For some years the FAA has gradually been encouraging FSDO inspectors to have pilots who made an honest mistake go through retraining to help prevent future mistakes. We think that where it’s been applied it’s worked. We’re glad to see that it is now official FAA policy.
The catch is that in order to take advantage of the policy, the pilot has to talk with the FAA during the investigation. He or she has to discuss what happened so the FAA inspector can determine if the pilot made a mistake or meant to violate a reg and whether the pilot has a constructive attitude toward safe operations.
That means that if you don’t talk and the inspector thinks you violated a reg, it’s likely the matter is going to get kicked upstairs to the attorneys for an enforcement action. Therefore, not talking can hurt you. If you do talk, the inspector has the choice of resolving the whole thing by sitting down and talking with you about how to avoid it in the future, having you take some dual to make sure your skills and judgment are up to snuff or elevating it to an enforcement action. Your demeanor and attitude can and will affect the inspector’s decision.
We think the new policy means that if you think you made an honest mistake—and your attorney objectively agrees with you—it’s probably better to talk with the FAA inspector during an investigation. If you buzzed a crowded beach, telling the inspector that you’re sorry and won’t do it again won’t help you and is an admission that you were the one flying the airplane.
An Incident is Traumatic
A huge caution from us—do not talk with the FAA inspector the day of your incident/accident or right away upon receiving the letter telling you that you’re being investigated.
Whether you realize it or not, your adrenaline level is spraying out of your ears and you are not going to be entirely rational or put your best foot forward in the conversation.
Following the most minor paint-scrape airplane incident, even the coolest pilot in the world is going to be mortified that he or she dinged an airplane—that pilot would rather have totaled the family car—it’s a huge point of pride.
For the next 24 hours, if you ask that pilot the sum of two plus two, she or he is likely to say, “Thursday,” and not have a clue that the answer makes no sense.
That means that if an inspector approaches you following an incident or accident and wants to talk with you, politely say that you will talk in the next day or so, but not today. Some inspectors come across with the bad-cop routine and claim that you have to talk. You don’t. Get the inspector’s phone number and professionally and politely repeat that you will call in the next day or so.
For an investigation letter from the FAA, call your aviation attorney and, with him or her, make a decision about talking to the FAA, but don’t make the call to the FAA for at least 24 hours.
Almost invariably, if you talk to the FAA the day of the incident, you will say something that doesn’t make sense, is completely inaccurate or both. Later, you’ll be faced with trying to correct your comment and the FAA may accuse you of making inconsistent statements—and lying to a federal official is a felony. Martha Stewart didn’t go to the slam for cooking the company books; she went for lying to investigators.
If the FAA asks for a written statement, discuss it with your lawyer, keep it short and to the point (pilots have a tendency to get themselves into trouble by saying too much) and then review and revise it with your lawyer before sending it in. You want it to be 100 percent accurate and you want to express it well.
You couldn’t get the gear down despite everything. You made a beautiful gear-up landing. No one was scratched—and we don’t know of anyone hurt in a gear-up landing of a civilian airplane since WWII so long as the pilot kept the engine running at least until very short final. However, the press was alerted, ran live coverage of breaking news of aircraft occupants in mortal danger and your miracle landing and now wants to interview you.
Our recommendation is to politely decline or just make yourself unavailable. Trust us, you will not come across as the coolest pilot ever—your hair will be messed up from your headset, it’s impossible to answer stupid questions quickly and concisely and the reporter will decide which parts of the video get shown on the news. You will not only look like a dolt, there’s a chance you’ll say something the FAA can latch on to and investigate beyond a simple mechanically induced gear-up event.
Any time you think you may have violated a regulation or if you have an incident in which you damage an airplane, file an Accident Safety Reporting System (ASRS) report with NASA (http://asrs.arc.nasa.gov) immediately. There is absolutely no downside to doing so. The FAA cannot find out who filed it from NASA. You do not implicate yourself if the FAA investigates the event. If you are found to have committed a violation—so long as it wasn’t on purpose and didn’t involve what the NTSB defines as an accident—when you show the FAA that you filed an ASRS report within 10 days of the event, you will not be subjected to the penalty associated with the violation.
The ASRS report is one of the best protections available to a pilot who inadvertently violates a regulation.
In the example at the beginning of the article you were flying IFR apparently in violation of two FARs, but they had nothing to do with why you damaged your airplane. Can your insurance company deny coverage because of the violation? No—with almost no exceptions.
While pilots often claim that aircraft insurance companies do everything they can to keep from paying claims, the reality is just the opposite. We talked with Jon Doolittle, principal of Sutton James aviation insurance brokers, about denials of coverage. When we brought up the subject, he expressed surprise, as he said it is something that is rarely seen in the aviation world. He told us that he cannot recall a single denial of coverage of a claim within his agency in the last decade.
Doolittle explained that violation of an FAR is almost never grounds for denial of coverage. Unless the violation was causally related to the accident, an insurance company would have a hard time convincing a court that it didn’t have to pay a claim under its policy. Also, it’s expensive for an insurance company to litigate a denial of coverage claim.
According to Doolittle, his experience has been that even where an insurer can rightfully deny a claim—such as where the pilot had lied about his time or ratings on his application, or the airplane was way out of annual—the company will usually pay the claim and then never insure the pilot again.
The bottom line is twofold: If you crash and it turns out you violated a reg somewhere in the process, your insurer is almost certainly going to pay the claim; but if you do something that affects whether the insurer would cover you in the first place, such as lie on the application or don’t bother to have your airplane annualed or renew your medical, the chances of a coverage denial do go up.
What can you do in advance to protect yourself from the unpleasant things discussed above?
Enroll in the AOPA Pilot Protection Plan. The $39 annual fee for the basic service includes unlimited consultation with Legal Service Plan staff and a specified list of number of hours of representation by an aviation attorney who is on the LSP list of attorneys. The $99 Plus Level plan provides coverage geared toward professional pilots.
As far as we’re concerned, the Pilot Protection Plan is inexpensive insurance for pilots for legal and medical issues. We do note that you can’t enroll after you’ve had your incident or notification of investigation and expect coverage—just as you can’t buy insurance after an accident and expect coverage.
Take regular, frequent dual, especially on crosswind landings. It sounds very basic and it is—recurrent training dramatically reduces your accident risk. The data we’ve seen indicates that staying current in the FAA WINGS program dramatically reduces a pilot’s risk of being involved in an accident. Professional pilots fly frequently, yet they take recurrent training—it’s a major part of the reason their accident rate is low.
Learn about crash survival and the equipment you should have with your for survival. We recommend the nonprofit foundation Equipped to Survive (www.equipped.org) for further information.
Don’t do anything dumb. Make sure you check for TFRs before every flight.
Tempted to make a low pass down the runway at a fly-in so the 40 or 50 people standing on the ramp can see how cool you are? Avoid temptation. The FAA has said that group of people makes the ramp a congested area—if you are not taking off or landing, you’ve got to be 2000 feet away horizontally and 1000 feet above them. One of them may not like what you’ve just done and make a call to the FAA to complain. Suddenly you’re being investigated for violation of the minimum altitude regulations.
Inadvertently violating a reg doesn’t mean your insurance isn’t going to pay if you have an accident or that you’re going to get a violation. However, protect yourself by joining AOPA’s Pilot Protection Plan and taking regular recurrent training.
If something does bring you to the FAA’s attention, resist the temptation to talk to anyone about the incident until you have spoken to an attorney and had time to focus your thoughts.