We publish this Newsletter on a periodic basis to inform clients and colleagues of recent developments in those areas of the law in which we are primarily engaged--FAA/NTSB/DOT, certification and enforcement, aircraft and equipment acquisition, sales and leasing and airports matters. We hope that you find AVIALEX® both interesting and informative. We would also appreciate your feedback with any suggestions or comments that you might have. If you would like to contribute an article that you think may be of interest, we'd be happy to give you full credit if we incorporate it. Additionally, if you know of someone who might be interested in receiving AVIALEX® , please FAX their names and addresses to us. You may reproduce this Newsletter or use any information from it so long as you give us credit for same.
MILESTONES
NASA Aviation Safety Reporting Program
In our first issue of AVIALEX® , we discussed the NASA Aviation Safety Reporting Program (ASRP). [Please see page 3 of that issue and also, FAA Advisory Circular 00-46C]. [UPDATE: See Avialex Volume 4]. The Program has recently reached a milestone--over 275,000 reports have been filed with NASA in the eighteen years that the Program has been in effect. Aside from receiving reports from those wishing to invoke "immunity" from FAA sanctions, ASRP has received numerous reports of possible unsafe conditions which neither the FAA nor the industry had previously been aware, and reports them to the FAA, NTSB and the industry on a frequent basis. As but one example, three years prior to the FAA classifying the B-757 as a "heavy" for ATC separation purposes, NASA had begun receiving reports from aviation system users encountering wake turbulence problems behind that aircraft and was routinely relaying this information to the FAA and NTSB. Other key areas of ASRP concern of late are human factors issues and reports of erroneous TCAS Resolution Alerts as well as flightcrew utilization of TCAS for purposes other than which it was intended(for example, using it for following the aircraft ahead on visual approach).
Bill Reynard and his NASA-Ames team, aside from being nice folks, have done a remarkable job with this program. They also go the extra mile. It is not uncommon for those filing reports to get a thank-you note from the NASA staff member reviewing the report, and in some cases, a follow-up telephone call.
Once again, the ASRP Program is not confined to pilots. All aviation system users--pilots, mechanics, air carriers, repair stations and other air agencies--can file a report. Make sure that when any "irregularity" occurs, a report is filed--not just by the pilot or crewmembers involved, but also by the operator.
Should you or your employees ever have any questions concerning whether the NASA program applies to any incident or occurrence which may arise, please feel free to give us a call.
AND WHILE WE'RE ON THE SUBJECT OF VOLUNTARY DISCLOSURE...
The NASA Reporting Program and the FAA's Self Disclosure Policies (See AC's 120-56 and 120-59) are mutually exclusive. [UPDATE: See Avialex Volume 4]. If you, or your company qualify for Self Disclosure (i.e., an air carrier or a manufacturer) take advantage of both and prepare and file both reports.
For the very same reasons set forth in the following article on responding to the Letter of Investigation, we highly recommend that prior to preparing and filing these reports, you consult experienced aviation counsel.
RESPONDING TO THE LETTER OF INVESTIGATION
While we don't want to rehash what was contained in our first issue, we cannot emphasize enough the importance of a timely response to the FAA's letter of investigation (LOI). However, BE CAREFUL! Generally speaking, FAA enforcement investigations are civil in nature, rather than criminal. Accordingly, the 5th Amendment rights pertaining to self-incrimination do not apply. Anything that you (or your employees) say in response to a letter of investigation, whether in person or by letter, can and will be used against you by the FAA.
We recommend to our clients that they never respond to a LOI without consulting experienced aviation counsel. It is also highly cost effective, in many cases saving thousands of dollars in litigation expense, civil penalties and other costs generally incurred in connection with the defense of FAA enforcement actions or as a result of the FAA's imposition of a punitive sanction.
HUMAN FACTORS
This is an area to which neither the FAA nor the industry have devoted sufficient attention. Just ask any certificated pilot or mechanic what human factors are and check out the response.
Here's what the Airman's Information Manual (AIM) has to say (note that its way in the back of the AIM--the part that most pilots seeking certificates and ratings don't bother reading):
Fatigue -
- Fatigue continues to be one of the most treacherous hazards to flight safety, as it may not be apparent to a pilot until serious errors are made. Fatigue is best described as either acute (short-term) or chronic (long-term).
- A normal occurrence of everyday living, acute fatigue is the tiredness felt after long periods of physical and mental strain, including strenuous muscular effort, immobility, heavy mental workload, strong emotional pressure, monotony, and lack of sleep. Consequently, coordination and alertness, so vital to safe pilot performance, can be reduced. Acute fatigue is prevented by adequate rest and sleep, as well as by regular exercise and proper nutrition.
- Chronic fatigue occurs when there is not enough time for full recovery between episodes of acute fatigue. Performance continues to fall off, and judgment becomes impaired so that unwarranted risks may be taken. Recovery from chronic fatigue requires a prolonged period of rest.
Stress -
- Stress from the pressures of every-day living can impair pilot performance, often in very subtle ways. Difficulties, particularly at work, can occupy thought processes enough to markedly decrease alertness. Distraction can so interfere with judgment that unwarranted risks are taken, such as flying into deteriorating weather conditions to keep on schedule. Stress and fatigue (see above) can be an extremely hazardous combination.
- Most pilots do not leave stress "on the ground." Therefore, when more than usual difficulties are being experienced, a pilot should consider delaying flight until these difficulties are satisfactorily resolved.
Emotion -
Certain emotionally upsetting events, including a serious argument, death of a family member, separation or divorce, loss of job, and financial catastrophe, can render a pilot unable to fly an aircraft safely. The emotions of anger, depression, and anxiety from such events not only decrease alertness but also may lead to taking risks that border on self-destruction. Any pilot who experiences an emotionally upsetting event should not fly until satisfactorily recovered from it.
Personal Checklist -
Aircraft accident statistics show that pilots should be conducting preflight checklists on themselves as well as their aircraft for pilot impairment contributes to many more accidents than failures of aircraft systems. A personal checklist, which includes all of the categories of pilot impairment as discussed in this section, that can be easily committed to memory is being distributed by the FAA in form of a wallet-sized card.
PERSONAL CHECKLIST
I'm physically and mentally safe to fly, not being impaired by:
•
Illness,
• Medication,
• Stress,
• Alcohol,
• Fatigue,
• Emotion. The same theme is also contained in FAA Advisory Circular 67-2, Chapter 19, which states in part:
- Your attitudes and general mental state are just as important to safe flight as the condition of your aircraft. Any disturbing feelings which affect your ability to concentrate are a potential threat. These include anger, fear, frustration, depression, worry, and anxiety.
- Occasionally, a pilot who has family or job problems on his mind starts to carry his worries over into flying. In other words, he may become preoccupied with fears about flying or possible physical reactions at altitude. If this happens to you, be honest with yourself and get the professional advice of a doctor. Although anxiety of this sort is usually temporary, it can dangerously affect your flight performance and cause you further emotional problems if it is ignored.
- When you are under a strain of any sort when you don't feel "good" don't fly. If your concerns are only of the mild, everyday sort, at least recognize that they exist. Then make an extra effort to concentrate on flight planning to focus all your attention on aircraft operation, and to leave your other concerns behind you on the ground.
However, human factors are not confined to piloting aircraft. Human factors come into play in other areas as well, including maintenance. Here is a recent example.
We recently represented a young air carrier A&P mechanic in an FAA enforcement action. The mechanic was replacing wing rivets on an aircraft, accessing them through the flap well. He anticipated that it was going to be a quick job--so rather than setting up floor lighting (this maintenance was being done at night) he simply used his flashlight. He finished the rivet replacement and took his lunch break. By the time he got back to the aircraft to perform other work, he had forgotten about his flashlight. The aircraft was returned to service and flew on several scheduled flights over the next couple of days without incident. However, on the third day, and as the aircraft was about to turn on departure, the flight crew reported that the ailerons had locked up. They declared an emergency and returned to the airport using rudder and differential power for directional control.
The air carrier employer suspended the mechanic without pay for 14 days. However, the FAA sought to suspend his mechanic certificate for an additional 16 days. While normally a 30-day suspension would not be out of line for an omission of this type, we urged the FAA to take the following into consideration:
- the mechanic had been employed by the carrier for 6 years and had proven to be an otherwise exemplary employee;
- the mechanic's wife had recently undergone medical treatment for a life-threatening condition--there were numerous unpaid bills for medical and related services which were not covered by insurance and the mechanic and his wife were being almost constantly hounded by bill collectors;
- to get out from this indebtedness, the mechanic had "volunteered" for any overtime he could get, especially evening shift work over the Christmas holiday period;
- between worrying about his wife's medical condition, worrying about bills, and working substantial overtime periods, the mechanic was on the brink of exhaustion--yet neither he nor his supervisors saw it; in fact, subsequent to the incident, and while the matter was pending before the FAA, the mechanic had himself taken ill; and
- Company management, in investigating the incident and learning of these factors, started its own human factors program to prevent similar incidents in the future. The Company was also backing up the mechanic and providing him with the defense in the FAA enforcement action
Needless to say, fairness prevailed. The FAA reduced the suspension to coincide with the Company-imposed discipline.
Obviously, we cannot prevent medical, family, financial or business problems from arising. The key, however, is to recognize the potential adverse effect that these problems may have.
SERVICE BULLETINS vs. STC's--Which Controls?
We recently successfully defended a personal injury suit arising out of the crash of a Piper Apache. Apparently, as the aircraft was on a short final approach and at low altitude, ATC instructed the aircraft to "go-around" as the traffic ahead had not yet cleared the runway. The pilot immediately attempted to comply with this instruction and started the go-around procedure, when his left engine quit, preventing him from raising the gear or flaps.
NTSB and manufacturers' investigations revealed traces of automotive gasoline in the aircraft fuel system. The aircraft owner (whom we did not represent) admitted that he had fueled the aircraft with automotive gasoline, but that the aircraft had been STC'd for the use of this fuel.
Sure enough, there were aftermarket STC's issued for this aircraft/engine type to permit the use of automotive gasoline, and the aircraft historical records indicated "compliance" with same. Nonetheless, subsequent to the FAA's issuance of the STC's, Piper issued a "mandatory" service bulletin prohibiting the use of automotive fuels in this aircraft. For whatever reason, the service bulletin was never incorporated into an Airworthiness Directive (AD).
We were prepared to advance the argument that as between the FAA-issued STC and a manufacturer's service bulletin, the STC should control. Although the manufacturer claimed that the service bulletin was "mandatory", the absence of any FAA regulatory action, either in the form of the issuance of an AD, or modifying or revoking the STC's, reducedthe service bulletin to nothing more than a mere recommendation, having little if any force or effect.
We never had the opportunity to test this argument, however. The plaintiff, and his attorney, for whatever reason, elected not to assert any claims based upon the use of automotive fuel.
FOR WHATEVER ITS WORTH...
No one's perfect. However, according to the DOT Inspector General, and as reported in Aviation Week & Space Technology (March 28, 1994), it appears that last year the FAA (yes, the same outfit that is a billion or so over budget and years late on the Advanced Automation ATC System) wasted about $4.4 million through mismanagement of its leased fleet of automobiles. The title of the Aviation Week article: "CARS-AREN'T-US".
ATTORNEY-CLIENT RELATIONS
I like lawyer jokes as much as the next person. In fact, my repertoire of lawyer jokes is rather large. Certainly, we should never take ourselves so seriously that we lose the ability to laugh at ourselves. As a purported wise old sage once said, the key to enlightenment is learning how to "lighten up".
Recent studies by the American Bar Association (ABA) and other lawyer groups have confirmed something that many of our clients have known for years--and (surprise!) that is that most people don't like lawyers. Out of 71 "professions", lawyers rank 56th in honesty and integrity. The good news is that we're perceived more favorably than real estate agents, car salesmen, prostitutes, organized crime bosses and drug dealers. The bad news is that we're not held in as high regard as are garbage collectors, plumbers, newspaper reporters, IRS officials, TV talk-show hosts and cab drivers. The ABA studies confirm that the public perceives lawyers as knowledgeable, competent and having the ability and wherewithal to solve problems, they still don't like us. Why?
Clients want their lawyers to be dedicated and communicative in addition to (and in fact even more than) being competent and knowledgeable. Clients' most common complaints are that their attorneys won't return phone calls, respond to letters, fully disclose and explain options, or that their bills are too high.
I can't speak for other lawyers, but I, as well as the members of the office staff, have always maintained a philosophy that "CLIENTS ARE CUSTOMERS!". I have carried this philosophy with me from the time that I was a staff government attorney, to my employment with a major air carrier, and to the present day in private practice. This philosophy is followed by everyone in the office, not just attorneys, but paralegals, clerical personnel and the receptionist. Yes, we treat our clients as clients--we strive to provide the best legal representation possible and in a cost-efficient manner, and I think we've done this very successfully. But we also treat our clients as valued customers, extending to them the same courtesies that any customer would expect to receive from any merchant or vendor.
While we cannot guaranty success in every legal undertaking, we will guaranty that you will be treated professionally and courteously. Your telephone calls will be returned and we will respond to your letters and concerns in a timely and informative manner. If any of our clients should ever feel that they have received less, all they have to do is pick up the phone.
Speaking of communications, our office hours are 8:30 a.m. to 5:00 p.m. Monday through Friday. During the hours of noon to 1:00 p.m. and during evening hours and weekends, your calls will be answered by our voice-mail system. This system is regularly monitored and your calls will be returned promptly. Additionally, for certain selected clients we will give out home telephone, cellular telephone and pager numbers, so that we can respond to any urgent matters that may arise during off hours. If you do not have these numbers, and would like them, please give us a call.
IN FUTURE ISSUES OF AVIALEX : - Unapproved parts
- Accident investigation/reporting
