TECH 3440 Aviation Law

Distinguish U.S. Customs and Border Protection (CBP) responsibilities from those of Immigration and Customs Enforcement (ICE)

-A federal law enforcement agency among its duties is to detect, interdict, and prevent acts of terrorism and the unlawful movement of people, illegal drugs and other contraband toward or across borders of the United States. Immigration and Customs Enforcement (ICE)

Distinguish U.S. Customs and Border Protection (CBP) responsibilities from those of Immigration and Customs Enforcement (ICE)

-CBP vs ICE CBP- PREVENT ACTS OF TERRORISM AND other contraband from entering the U.S. U.S. Customs & Border Patrol

An agency of the U.S. government is presently experimenting with and assisting in the development of technical standards for the components of the next generation air traffic control system (NextGen). What agency is responsible for that work, and where is it being carried out?

-Federal Aviation Administration

Under what circumstances is a business legally liable for the consequences of the negligence of its employees?

A business is vicariously liable for torts committed by its employees when they are acting within the scope of their employment.

What is a Tort?

A tort is an act or omission that causes injury to another person by breach of a legal duty not arising out of a contract, which subjects the actor to liability for damages in a civil lawsuit.

To whom do you owe a duty be reasonably careful?

Anyone who might foreseeably be injured by your neglect. This could include other flight crewmembers, passengers, people on the ground, and the owner of the aircraft. All of these people (or their survivors) are potential plaintiffs if your neglect causes injury to them or their property.

Running well ahead of schedule due to an extreme tailwind, a pilot employed by an air parcel service decides to make an unscheduled stop at an airport along his route to pay a surprise visit to an old college friend who works for an FBO there. Taxiing too fast for conditions on the icy ramp, the pilot loses control of the aircraft, colliding with a parked aircraft owned by the FBO. Is the pilot's employer liable to the FBO for the damage? Explain

Assuming the pilot has not obtained his employer's permission for the deviation, this deviation for personal purposes has all of the earmarks of the pilot having "gone off on a frolic of his own," leaving him personally liable, but not his employer.

Why is it important to keep the corporation's money and other assets clearly separated from your own?

Because if you commingle the corporation's money or assets with your own, it appears to the outside world that the business is a sole proprietorship or partnership, with the result that the alter ego doctrine would allow creditors and others having legal claims against the business to reach your personal assets to satisfy the liabilities and debts of the business.

In a corporation, what decisions do shareholders, board of directors, and corporate officers typically make? c) What decisions do corporate officers typically make?

Corporate officers (management) typically make routine day-to-day business decisions that conform to policies set by the board of directors.

Regardless of its form, what duties does every business owe to its employees?

Every business, regardless of its form, owes its employees the duty to provide workers' compensation insurance and unemployment compensation insurance, the duty to pay agreed wages and withhold payroll taxes, and the duty to provide a safe place to work.

You receive a letter from the FAA requesting that you submit to a rather extensive and expensive batter of the psychological and psychiatric tests to determine whether you are an alcoholic. b) What are the possible legal consequences to you, if any, if you fail to promptly comply with the FAA's request?

Failure to promptly submit additional information upon FAA request is a ground for the FAA to suspend your aviation medical certificate indefinitely on an emergency basis until you do submit the requested medical information.

Which agency of the U.S. government has the primary responsibility for regulating aviation safety?

Federal Aviation Administration

You want to determine who owns a particular aircraft. Which agency of the U.S. government would have the information, and where would it be found?

Federal Aviation Administration's Mike Moroney Aeronautical

You hold an unexpired aviation medical certificate when you experience a health problem. Describe the complete analytical process by which you will determine whether or not it is legal for you to continue to act as pilot or other required flight crewmember.

First, ask yourself: "Is this one of the specific disqualifying conditions?" If the answer is yes, then it is not legal for you to continue to act as a pilot or other required flight crewmember. If the answer is no, then ask yourself whether the medical condition is something that can lead to an unpredictable and suddenly incapacitating event in flight or that can impair your judgment or ability to control the aircraft precisely, to see and avoid other aircraft, or to understand and comply with the instructions of air traffic controllers. If the answer to that question is yes, you should refrain from acting as a pilot or other required flight crewmember until you have recovered. If the answer is no, then ask yourself if you are taking medication that can affect your vision, alertness, judgment, or sense of balance. If the answer to that question is yes, you should refrain from acting as a pilot or other required flight crewmember until at least twice the longest recommended time between doses has passed since you took your last dose of the medicine (and you may then resume flying only if symptoms have not returned).

The FAA suspended your certificate for 180 days for an FAR violation. Because you either failed to timely appeal the Order of suspension or you have exhausted the appeal process and the FAA prevailed, the order is final. How long will the violation remains on your FAA record?

For the rest of your life

What difference does it make to a business whether the IRS considers a worker an employee or the business or an independent contractor?

If the IRS considers a person an employee, then the business is responsible for withholding payroll taxes from the person's pay and is liable to the IRS for such taxes, plus interest and penalties, if they were not timely withheld and deposited.

Your aircraft has been involved in an accident. What agency or agencies will investigate the accident? What agency will determine the probable cause of the accident?

National Transportation Safety Board (NTSB)

What is negligence?

Negligence means failing to do an act that a reasonably careful person would do or doing an act that a reasonably careful person would not do under the same or similar circumstances to protect others from harm.

Can the FAA both suspend your certificate and fine you as punishment for the same FAR Violation? Why?

No, because that would violate the constitutional prohibition against double jeopardy

Can your chosen form of business protect you from personal liability for the consequences of your own negligence or intentional torts?

No, you are always liable for the consequences of your own negligence and intentional torts.

You are suffering from what you think is a bad cold and are taking a cold remedy b) Even if it is technically legal for you to fly, is it prudent? Why?

No. Although a cold is not one of the specific disqualifying conditions, it may make it unsafe for you to serve as a pilot so that 14 CFR §61.53 would require you to refrain from exercising pilot privileges. Also bear in mind that the mandate of §61.53 requires the exercise of judgment in such a situation, and a head cold can prevent the normal process by which your body adjusts to changing atmospheric pressure encountered during climbs and descents. Such a "sinus block" may cause pain so excruciating as to incapacitate you as a pilot and leave you with permanent ear damage resulting in hearing loss and loss of balance. Behave responsibly, using your best judgment and being on guard against wishful thinking and rationalization. Don't fly if it would be unwise.

What are "open skies" agreements?

Open Skies agreements do this by eliminating government interference in the commercial decisions of air carriers about routes, capacity, and pricing, freeing carriers to provide more affordable, convenient, and efficient air service for consumers.

You are suffering from what you think is a bad cold and are taking a cold remedy a) How can you tell if it is legal for you to fly while you are taking that medication?

Read the label or package insert that came with the medication to determine whether it may affect your vision, alertness, judgment, or sense of balance. If in doubt, call your physician for advice. Page 92

What are the primary forms of business organizations?

Sole proprietorship, General partnership, Limited partnership, Limited liability company (LLC), Limited liability partnership (LLP), corporation

To what extent, if any, may state governments regulate the routes served and rates charged by airlines?

State governments are free to regulate commerce, as long as state rules do not conflict with federal law or unduly burden interstate or foreign commerce

You are the director of maintenance for a regional airline. You are informed by one of the company's mechanics that she has just discovered that one of the company's aircraft has overflown the time it was due for performance of an FAA Airworthiness Directive (AD) by almost 100 hours. What will you do? Why?

Take immediate action to perform the AD before the aircraft flies again and report the violation to the FAA immediately (before they learn about it from another source), so that the company may be able to persuade the FAA to resolve the matter by issuance of a Letter of Correction instead of enforcement action under the provisions of the Air Carrier Reporting and Correction Program.

In a corporation, what decisions do shareholders, board of directors, and corporate officers typically make? b) What decisions do the board of directors typically make?

The board of directors elects its own officers, typically hires the CEO, sets corporate policy, and makes major business decisions.

What did Congress intend to accomplish by enacting the "Hoover Bill"? Do you think it worked?

To provide a check against possible abuse of the emergency authority of the FAA. Although the vast majority of the emergency cases reviewed by the NTSB under the Hoover Bill procedure found no abuse, attorneys' opinions differ on whether this indicates that such abuse is rare or that the NTSB is simply rubber-stamping abusive FAA actions.

Which agency of the U.S. government is responsible for the day-to-day screening of airline passengers, baggage, and cargo?

Transportation Security Administration (TSA)

What federal agency is responsible for assuring the coordination and sharing of intelligence relating to threats against transportation?

Transportation Security Oversight Board

In a corporation, what decisions do shareholders, board of directors, and corporate officers typically make? a)What decisions do shareholders have the right to make?

Typically, the only decision the shareholders have the right to make is to elect the board of directors.

Does the National Transportation Safety Board (NTSB) have any aviation responsibilities not relating directly to aircraft accidents? If so, describe.

YES, the NTSB also serves as the first level of appeal in cases where the FAA has taken enforcement action to suspend or revoke a certificate or impose a fine.

Can the FAA both require you to submit to reexamination and suspend your certificate for the same FAR violation? Why?

Yes, because reexamination is not for purposes of punishment, this does not violate the constitutional prohibition against double jeopardy.

Approaching an airport to land, at about 1,000 feet above ground level (AGL), an airliner suddenly rolled inverted, entered a vertical dive , and dove straight into the ground. There were no survivors. The NTSB is unable to determine the probable cause of the crash. IS there any way for survivors of the passengers who were killed to prevail in litigation? If so, against whom? Explain

Yes, depends on the theory of liability. Consider tort theory under Res ipsa loquitur (literally, "the facts speak for themselves")

If you are involved in an aircraft accident causing injuries to other people or damage to their property and you are convicted or an FAR violation in connection with that accident, will that conviction have any effect on the outcome of a civil lawsuit against you for negligence? Explain

Yes, if the FAR that you violated was intended to prevent this type of accident and the violation was a cause of the accident, then you would be found negligent as a matter of law (negligence per se). If an FAA finding of the violation has already become final that finding may be used in a subsequent civil trail to prove negligence. This is known as the doctrine of res judicata (the matter is decided). Page 111 If not, the judge or jury may take the FAR into account and make a finding in the civil trial whether the regulation was violated. In either case, such a finding of negligence as a matter of law based upon an FAR violation is called negligence per se (negligence as such).

Congratulations! You have neem hired as a new assistant manager for a Fixed Base Operator (FBO). You learn that the business treats its aircraft salespersons, flight instruction, and aircraft mechanics as independent contractors. You ask your boss why and are told: "It saves us having to do all the paperwork and bear the extra expense of withholding payroll taxes and having to pay for workers' compensation insurance and unemployment compensation insurance premiums, and it keeps them from getting any ideas about joining a union." Do you think there is something wrong with that? Reply thoughtfully and in detail, as a model manager would.

Yes, several aspects of this working arrangement should be cause for concern. First, the payroll taxes: Since the IRS has the benefit of hindsight review, if any of these workers fail to pay their income taxes, the IRS may later determine that the person was actually an employee and require the business to pay that person's income taxes, plus interest and penalties. Second, state law requires employers to pay workers' compensation and unemployment compensation insurance premiums, and workers' compensation insurance is really a great benefit to the FBO because if an insured employee is killed or injured on the job, then he (or his survivors) would be legally barred from suing the FBO. But if the employer doesn't have that insurance, he (or his survivors) could sue the business. It's really pretty cheap protection, as insurance goes, and is unwise for the FBO to not carry it.

You receive a letter from the FAA requesting that you submit to a rather extensive and expensive batter of the psychological and psychiatric tests to determine whether you are an alcoholic. a)Are you required to comply? If you comply, who is responsible to pay for these tests?

Yes, you are required to submit additional medical information upon the FAA's reasonable request, at your own expense. Page 94

You have failed the color-vision test during your examination for an aviation medical certificate. Is there another procedure by which you may still be able to obtain an aviation medical certificate? If so, explain.

Yes, you may demonstrate your ability to an FAA inspector from the Flight Standards District Office (FSDO) in a test leading to a statement of demonstrated ability (SODA). The test will usually consist of distinguishing between the colors of light gun signals flashed from the airport control tower.

You receive a Notice of Proposed Certificate Action signed by an FAA attorney notifying you that the FAA believes you have violated one or more FARs and intends to suspend your certification for 180 days. A form is attached that offers you the opportunity for an informal conference with the FAA attorney. a) What is the Purpose of an Informal Conference?

a) The purpose of an informal conference is to try to reach a settlement agreement. You have the opportunity to explain the violations, although informal, it is all on professional matters.

You are a U.S. Airline Pilot, and you are arrested for an alcohol or drug-related traffic offense. a) Are you required to report the arrest to the FAA? If so, to whom and when?

a) Yes, on your next application for an aviation medical certificate to the FAA Civil Aviation Security Division in Oklahoma City. Page 93

You are an aircraft mechanic with airframe and powerplant (A&P) ratings. You work the night shift at a shop that does a high volume of inspection and maintenance on a wide variety of general aviation aircraft. You are awakened at home at 8:00am by a phone call from a person who identifies herself as an FAA inspector and ask "Did you perform a left wing repair on the Cessna N7173M?" a)What will you reply why?

a)"Why do you ask?" Unlike the pilots in the preceding questions, you may have no idea why this inspector is calling you. Take this opportunity to find out, without responding to whatever he may tell you. Then, say something like: "Inspector, I feel that it would be prudent for me to consult with my attorney before answering your questions. If you'll give me your phone number I'll get back in touch with you as soon as I've had the opportunity to talk with my attorney." Anything else you say could be used against you as evidence in an enforcement case to suspend or revoke your certificate for an alleged FAR violation.

You are a U.S. Airline Pilot, and you are arrested for an alcohol or drug-related traffic offense. b) If the arrest leads to your conviction of a drug- or alcohol-related traffic offense, are you required to report the conviction to the FAA? If so, to whom and when?

b) Yes, to the FAA Civil Aviation Security Division in Oklahoma City no later than 60 days after the conviction and to your AME on each subsequent application for an aviation medical certificate. Page 93.

You are an aircraft mechanic with airframe and powerplant (A&P) ratings. You work the night shift at a shop that does a high volume of inspection and maintenance on a wide variety of general aviation aircraft. You are awakened at home at 8:00am by a phone call from a person who identifies herself as an FAA inspector and ask "Did you perform a left wing repair on the Cessna N7173M?" b)What else will you do? Why?

b)Assuming that the inspector's answer to your opening question indicates a possible accident, FAR violation or other problem, consult your attorney for advice. The earlier you involve your attorney, the more cost-effective his advice can be in controlling the consequences of your mistake. Be sure to file an Aviation Safety Report form with NASA (maintenance personnel can file them, too), and mail or submit it online within 10 days of the incident. If the FAA initiates an enforcement case, presentation of the receipt showing that this report was timely filed may entitle you to immunity from sanction. Thus, even if the FAA does issue an Order of Suspension, you would not be required to stop exercising the privileges of your certificate unless the violation was shown to have been intentional

You receive a Notice of Proposed Certificate Action signed by an FAA attorney notifying you that the FAA believes you have violated one or more FARs and intends to suspend your certification for 180 days. A form is attached that offers you the opportunity for an informal conference with the FAA attorney. b) Can statements you make at the informal conference later be used by the FAA as evidence against you?

b)NO, The FAA cannot use statements you make at the informal conference to prove its case against you at a subsequent NTSB hearing on appeal. If, however, you tell a different story when you testify in your defense at the NTSB appeal hearing than you told at the informal conference, the FAA attorney can bring out your prior inconsistent statement for the purpose of impeaching your credibility. (For example, if at the informal conference you admitted that you were the pilot-in-command but denied committing the violation, then at the hearing testify that it couldn't have been you because you were somewhere else that day, the FAA attorney could bring out your prior inconsistent statement to cause the judge to doubt your truthfulness.)

You are a U.S. Airline Pilot, and you are arrested for an alcohol or drug-related traffic offense. c) You receive a letter from the FAA requesting that you submit to a rather extensive and expensive batter of the psychological and psychiatric tests to determine whether you are an alcoholic. Are you required to comply? If you comply, who is responsible to pay for these tests?

c) Yes, you are required to submit additional medical information upon the FAA's reasonable request, at your own expense. Page 94

You receive a Notice of Proposed Certificate Action signed by an FAA attorney notifying you that the FAA believes you have violated one or more FARs and intends to suspend your certification for 180 days. A form is attached that offers you the opportunity for an informal conference with the FAA attorney c) If the informal conference does not lead to the resolution of the case, what will be the FAA's next move?

c)The FAA will go ahead and issue an Order of Suspension or Revocation, as originally proposed.

What is the alter ego doctrine?

permits a plaintiff to "pierce the corporate veil"