Liability in the Dynamic Airways Boeing 767 Engine Fire

Let’s discuss liability in the Dynamic Airways Boeing 767 engine fire that occurred at the Fort Lauderdale/Hollywood International Airport on October 29, 2015. The plane, a Boeing 767 bound for Caracas, Venezuela, had a serious engine fire while taxiing for departure on Taxiway B. According to the Air Traffic Control (“ATC”) feed, everything happened relatively quickly. The aircraft behind the Dynamic 767 informed ATC that the “live” engine was leaking what appeared to be fuel. Moments later, that engine and a large portion of the port side of the aircraft were engulfed in flames. Fortunately, Broward County Fire Department responded to the scene and all passengers were able to evacuate within six minutes via the aircraft’s emergency exit slides. What is unfortunate, however, is that more than 20 people were injured, landing at least one passenger in the ICU with serious burns and one child injured. Furthermore, the Fort Lauderdale/Hollywood International Airport was closed for an indefinite period while emergency teams and airport administration contained the situation.

 

Time and time again, we are told that the most dangerous part of flying is “the drive to the airport.” Today, for some unfortunate souls onboard the Dynamic 767 bound for Caracas, that saying was a colossal farce. So who is to blame? Who do we hold responsible for the fact that some Dynamic passengers took a ride in an ambulance rather than an airworthy Boeing 767? Can those individuals have any redress for the injuries that they have sustained?

 

As of right now, it is too soon to tell who is at fault. Was it the airline, the pilots, the mechanics, ground crew, aircraft/engine manufacturers, and/or some unknown entity? It’s hard to say this early into the investigation. However, there is at least one early indications that seemingly spells disaster for both Dynamic Airways’ and the engine manufactures…the fuel leak. The two primary questions about the fuel leak are: what caused the leak and did the leak have anything to do with the fire? From there, an apportionment of blame can begin to sort itself out.

 

Well, what does “the blame game” have to do with potential torts in Dynamic Airways’ engine fire? Think of it this way. If the fire was caused by some sort of design defect in the engine, there may be a potential claim for strict product liability against the engine’s manufacturer. This theory of damage recovery allows the plaintiff to avoid showing negligence on the part of the manufacturer. Instead, the mere fact that the product was defective and caused injury is sufficient to allow the plaintiff to sue. Depending on the law in your state, for the most part, a strict liability claim will have four elements: 1) the defendant must be a merchant; 2) the product is defective at the time it is sold by the defendant; 3) the product is unreasonably dangerous; 4) the plaintiff suffers personal injury or property damage caused by the defective property. In the scenario where the engine was improperly designed, those injured on the Dynamic flight could potentially have a case using the strict liability theory.

 

Think of another scenario where the pilots of the Dynamic Airways’ 767 knew of the fuel leak and did nothing to correct or investigate the issue. In this scenario, you will likely have to also assume that the leak had something to do with the fire. This situation speaks to the tort theory of negligence. Negligence is an unintentional tort involving carelessness that causes harm. Generally, the tort of negligence requires the plaintiff to meet 4 burdens: 1) the defendant owed the plaintiff a duty of care; 2) the defendant breached that duty of care; 3) the defendant’s breach is the proximate cause of the plaintiff’s injury; and 4) the plaintiff suffers injury that is protected under the law. In the scenario of pilot negligence, you could see where those individuals injured on the flight could say that the pilot owed a duty and that the pilot breached that duty by not seeing to it that the leak was corrected, thus causing their injury. You could also see that in the world where a mechanic incorrectly/failed to fix/diagnose/maintain the engine, the injured parties could work up a case for negligence.

 

Nonetheless, those with significant injuries do not want to sue pilots and mechanics for their catastrophic injury. Why? Simply put, these aren’t the people with the money. Rather, the pilots and the mechanics would rather need to worry about a FAA Enforcement Action being brought against them in that sort of situation; however, that is not to say that they could not also be sued for negligence.

 

As the investigation continues, it will be possible to give more poignant analysis on the situation. None of the above is to be considered legal advice, rather brief legal musings on the details as reported. There are a lot of moving parts to be considered in a case such as this (like will the Montreal Convention come in to play, etc)…much of which are too lengthy to recite in a blog article. If you have questions about the Dynamic Airways Boeing 767 engine fire, call an aviation attorney at The Ison Law Firm…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

Operating A Drone Near An Airport: A Guide

In order to avoid ending up on the nightly news or worse, the FAA’s list of civil penalty recipients, it’s a good idea to have at least a cursory understanding of the regulations/rules in place for operating a drone near an airport. There are so many UAV operators out there right now that don’t know how to go about legally operating their drone near an airport and/or what interaction they need to have with the airport/ATC/FAA before doing so. Most of the problem is that the FAA/DOT has dropped the ball and has failed to make crystal clear rules for UAV operators. Instead, drone operators are treated like the red-headed step-child of the aviation community and forced to second guess every move they make. As of right now, there are at least three things required for flying a drone: 1. Aircraft; 2. Controller; 3. A prayer that your operations are legal. Be that as it may, the following will hopefully guide your Section 333 operation toward being legal, should you need to fly your drone near an airport.

 

So what are the general rules? The golden rule from the FAA on UAV operations near airports is: don’t fly within 5 miles of an airport unless you contact the airport and control tower before flying. To that end, the FAA requires that a drone not be flown within 3 NM from an airport with a published instrument flight procedure, but not an operational tower, or 2 NM from an airport without a published instrument flight procedure or an operational tower, or 2 NM from a heliport with a published instrument flight procedure. That seems pretty simple…right?

 

The main question becomes: what do I do if I need to go within the area prohibited for UAVs? Let’s say for example you run a wedding photography business and your client is getting married at an outside venue and requires aerial footage. Luckily, you have a Section 333 Exemption and all of the necessary documentation to operate your drone commercially. But wait a minute…the wedding venue is within 5 NM of an airport with a published instrument flight procedure and operational tower. The first thing you will want to do is find the number for the Air Traffic Control tower at issue. The telephone numbers for most Air Traffic Control towers are available online at www.acukwik.com. When you call ATC, be prepared to supply them with your flight path and the location, date, and time of your requested operation. For example, you might call and say, “Good Morning, my name is Bill Smith and I plan to fly my 3D Robotics UAV over the Sable Wedding Pavilion tomorrow at 9:30 AM. I will circle the area for roughly 45 minutes at approximately 150 feet.” Generally, you will want to tell ATC who you are, what you are going to fly, where you want to fly it, and when you want to fly it. Make sure that you actually obtain permission from ATC before flying within their airspace. You may even want to provide ATC with your cell phone number so that they can get in touch with you if necessary.

 

Secondly, the FAA calls for drone operators to contact the airport before entering its airspace to conduct a drone flight. Most importantly, there will be times where you may want to fly within 2 NM of an airport with a published instrument flight procedure and no ATC tower, in which case you will only have to call the airport. Who do you call at the airport? The best person(s) to call at an airport for legal purposes would be the office of the airport administrator. Essentially, these are the CEOs of the airport. Again, you will want to advise this office of your flight path and the location, date, and time of your requested operation. If you cannot get ahold of anyone at the office of the airport administrator and you are working with a general aviation airport, you may want to try calling the fixed based operator (“FBO”). A FBO is typically the entity that provides fuel, pilot services, and aircraft services, etc. You can typically find the telephone number to both the office of the airport administrator and FBO online at www.airnav.com.

 

For consistent flight within the 5 NM barrier, the airport administrator may request a letter of agreement between you and the airport. In most cases, this is not necessary and is something that the FAA will not require. If an ATC tower or airport administrator, consult with your drone attorney or Section 333 attorney.

 

You will also note that restrictions are placed on airports with a published instrument approach. Most airports have some sort of instrument approach associated with one of its runways, be it a GPS approach, ILS approach, VOR approach, etc. Typically, you can determine whether a particular airport utilizes an instrument approach by reviewing the airport specifics online at www.airnav.com.

 

Maybe you have also heard of the term “No Drone Zone.” There are some areas in the country, such as Washington, D.C., in which the FAA explicitly prohibits the operation of UAVs. It is critical to make sure that the airport and area in which you want to fly are not under such a flight restriction. If so, you had better make other plans for your operation’s flight path.

 

And one last thing that all UAV pilots should always remember when flying, whether or not within an airport’s drone-restricted airspace, is to ALWAYS remain clear of other aircraft. While there haven’t been any conclusive tests completed to prove that a small unmanned aerial vehicle could cause catastrophic harm or any harm at all to a general aviation or commercial aircraft, it is highly advised that you not be the drone operator to test the theory. Such unauthorized drone operation could result in property damage, death, and/or FAA civil penalties for unauthorized UAV operation.

 

If you have any questions about how to operate within an airport’s drone-restricted airspace, be sure to call a drone attorney at The Ison Law Firm. Or, if you feel that you have violated a rule or regulation mentioned in this article, feel free to reach out. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

 

 

Pilot Deviation Penalties

  • ON Oct 27, 2015
  • /
  • BY Christopher Ison
  • /
  • IN Pilot Law

Pilot deviation penalties can be stiff. What is a pilot deviation? A pilot deviation is an action of or by a pilot that results in a failure to comply with an ATC clearance and/or instruction. The penalties for pilot deviations can range anywhere from a FAA Administrative or Enforcement Action, a “709” ride requirement, or even death. Possibly the best (and worst) example of how disastrous a pilot deviation can be comes from the deadliest aviation accident in history…the Tenerife Airport disaster.

 

On March 22, 1977, at the Los Rodeos Airport (now Tenerife North Airport) in the Canary Islands, two Boeing 747s collided on the runway causing the death of 583 people. At the time of the accident, the Tenerife airport was under dense fog and the taxiways were congested with overflow traffic. Immediately after lining up, the Captain of KLM Flight 4805 advanced the throttles and the aircraft started to move forward. The First Officer advised the Captain that ATC clearance had not yet been given, to which Captain Veldhuyzen van Zanten responded, “I know that. Go ahead, ask.” First Officer Meurs then radioed the tower that they were “ready for takeoff” and “waiting for our ATC clearance”. The KLM crew then received instructions which specified the route that the aircraft was to follow after takeoff. The instructions used the word “takeoff,” but did not include an explicit statement that the flight was “cleared for takeoff.”

 

First Officer Meurs read the flight clearance back to the controller, completing the read-back with the statement: “We are now at takeoff.” Captain Veldhuyzen van Zanten interrupted the First Officer’s read-back with the comment, “We’re going.” The controller then immediately said “OK” followed by “stand by for takeoff, I will call you,” indicating that he had not intended the clearance to be interpreted as a takeoff clearance. Unbeknownst to the KLM crew, Pan Am Flight 1736 was not clear of the runway. As a result, the two 747s collided, causing the deadliest aviation accident in history.

 

Let’s use this disaster to learn more about pilot deviations and their associated penalties. As evidenced by the Tenerife collision, the most important thing to know is that pilot deviations can be deadly. Some pilots may be able to stomach a potential FAA Enforcement Action brought against their certificate, but there is not one pilot on this planet that could stomach the death of passengers, crew, and those on the ground. While it may be easy to think “ATC probably won’t notice my screw up if I fly at 25,000 feet instead of 24,700 feet,” or “the FAA won’t ding me for such a small deviation,” you MUST remember that a simple deviation such as that could be the difference between life and death.

 

However, let’s say for example that the two Boeing 747s at Tenerife managed to avoid collision. Maybe KLM Flight 4805 was able to prematurely rotate and get airborne before striking Pan Am Flight 1736. What would the penalty be for a deviation like this? There were no fatalities. There was no property damage. There was, however, potential for disaster…which is what the FAA is concerned about. In this scenario, the FAA would likely initiate investigation and potentially administrative or enforcement proceedings. There is a litany of Federal Aviation Regulations that the FAA would claim the crew violated, however 14 C.F.R. §91. 123 and 14 C.F.R. §91.13 are used most often. §91.123 speaks to compliance with ATC clearances and instructions and §91.13 speaks to careless and reckless operations. Note that the §91.13 “careless and reckless operation” card is one that the FAA regularly plays, ancillary to other FAR violations. The penalties to such violations could include no action, a warning notice or letter of correction, a “709” ride, certificate suspension, civil penalties, and even certificate revocation.

 

If you are the subject of a FAA investigation, administrative or enforcement action, or civil penalty, make sure you contact an aviation attorney to speak about your possible defenses. In most cases, filing a NASA report is a good idea if you deviated from ATC clearance or instruction. If you have any questions about pilot deviation penalties and defenses, call an aviation attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

Do I Need A Pilot’s License to Get a Section 333 Exemption?

  • ON Oct 22, 2015
  • /
  • BY Christopher Ison
  • /
  • IN Drone Law

The first question most people seem to have about getting a Section 333 Exemption, is “do I need a pilot’s license to get a Section 333 Exemption?” This is an especially good question for people that want to use their drone for things like photography, real estate surveillance, agriculture, and filmmaking, because these folks typically don’t have a pilot’s license and consequently, they don’t want to go spend $14,000 on a private pilot’s license just to operate their drone commercially. The answer to the question, however, is that you DO NOT need a pilot certificate in order to OBTAIN a Section 333 Exemption from the FAA.  Nonetheless, the FAA requires that the person operating a drone under your Section 333 Exemption have at the bare minimum a Sport Pilot Certificate and a valid U.S. Driver’s License. This means that if you don’t have a pilot’s license, you can still get your Section 333 Exemption and then hire someone with a Sport Pilot Certificate to operate your drone for you. The following will outline your options if you don’t have a pilot’s license but still want to get a Section 333 Exemption for your drone operation.

 

First, you have to look at the economic and utilitarian side of going out and getting a pilot’s license. Do you have three to five months that you can dedicate to studying course material, taking lessons, and learning a new skill? Do you have the funds to get the license? Would having your license be useful to you in your personal life or business (other than for operating your drone)? If the answers to these questions are “yes,” you may want to carefully consider getting a pilot’s certificate for your Section 333 Exemption. And remember, you don’t have to have your pilot’s certificate at the time you send your Section 333 Petition to the FAA. Rather, you just have to have the certificate by the time you go out to operate your UAV as pilot-in-command.

 

So, if you decide that you DO want to get your pilot’s certificate, what is the most cost effective and efficient way to go about it for Section 333 purposes? There is an old wives’ tale out there that getting a Lighter-Than-Air Certificate (i.e. blimps and hot-air-balloons) is the fastest and most cost effective way of getting a certificate for Section 333 purposes. The ideology behind this theory is supported by the fact that a Sport Pilot, Lighter-Than-Air, Balloon, Certificate only requires 7 hours of training. While in some worlds this theory could be true, you will likely find that it is more difficult to actually locate a facility that can give out these types of certificates, let alone cheaply and quickly.

 

Nonetheless, if all you want to do is be legal while operating your drone and you are afraid that you won’t be able to get a FAA Medical Certificate, your best route is to get a Sport Pilot Certificate. The Sport Pilot Certificate for airplanes and helicopters requires a minimum of 20 training hours. The Sport Pilot rule allows a pilot to fly light-sport aircraft without the need for an FAA medical certificate. However, a sport pilot must hold at least a current and valid U.S. driver’s license in order to exercise this privilege. The caveat to obtaining a Sport Pilot Certificate is that there are a lot of restrictions placed upon operators with these certificates. In that, airmen with a Sport Pilot Certificate cannot go into certain airspaces, cannot fly at night, cannot carry more than one passenger, go faster than 87 knots, etc.

 

If you have a little more time to devote to training and a little more money to throw at the situation, you may be interested in obtaining a Private Pilot Certificate. The minimum number of training/solo hours required for this certificate is 40 hours and you will have to be able to pass the FAA Third Class Medical exam. While this process of obtaining this certificate is definitely more involved, there are significantly less restrictions placed upon you than those with a Sport Pilot Certificate. You can take passengers, fly into complex airspaces, go day or night, etc. Essentially, your wings aren’t clipped when you have a Private Pilot Certificate.

 

But what if you don’t have any desire in obtaining a pilot’s license but you still want to fly your drone for commercial purposes? As mentioned above, the best route for you is to either hire someone with a Sport Pilot Certificate or find a bored pilot down at your local airport to come fly for you. Some pilots may even be willing to fly your drone for free – just to have the thrill of flying a cool drone! But remember, you can still change your mind and decide to get your pilot’s license after getting your Section 333 Exemption, thus allowing you to operate your drone.

 

If you have any questions about this murky area of the Section 333 Exemption process, feel free to call a drone attorney at The Ison Law Firm. We can walk you through the process and help you develop a strategy that is best for you and your operation. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

FAA Drone Registration Rulemaking Process: Will They Make It In Time?

  • ON Oct 21, 2015
  • /
  • BY Christopher Ison
  • /
  • IN Drone Law

The FAA drone registration rulemaking process may be more involved than Anthony Foxx and Michael Huerta are letting on. On October 19, in a joint news conference, the two aviation “bigwigs” announced their proposal to develop a drone/UAV registration system. This, of course, is the government’s response to ever-happening incidents between drones and other aircraft in the National Airspace System. In order to do so, the Department of Transportation and the Federal Aviation Administration have put together a “task force” of drone industry leaders to develop the new registration “rules” by November 20, 2015. You read that correctly. The FAA thinks it can answer the National Airspace System’s drone problem in just one month. Beyond that, Foxx and Huerta expect to have these rules implemented “sometime in December.” Clearly, this is a knee-jerk reaction to the FAA’s expectation that close to a million drones will be sold over the course of the holiday season. There’s nothing like taking a relatively complex problem and finding a solution as quickly as possible (no matter how sloppy and poorly thought out the solution will be). Be that as it may, is it even possible for the FAA to hit the December deadline?

 

Let’s walk through how the FAA rulemaking process works and make a prediction as to whether or not the new drone regulations will be ready by December. Normally, the FAA will utilize what’s known as notice-and-comment rulemaking. In this situation, in order to create a new rule or Federal Aviation Regulation, the FAA must issue to the public a document known as a Notice of Proposed Rulemaking (“NPRM”). The NPRM explains things such as the need, the source of authority, and the reasons for the proposed rule. Once the NPRM is issued, the FAA must allow a period of time for public comment upon the rule. For instance, if the FAA wanted to create a new rule on how to manage wildlife at an airport, they would have to release the NPRM and then give the public a period of time to comment on the potential rule. Who would comment? In this situation, maybe an airport director would comment that such a regulation is “impractical for day-to-day wildlife management” but an animal trapper might say “this is a useful regulation for trappers.” Nonetheless, anyone that cares to comment is allowed to do so. Most of the time, the comment period is shorter than the public would like (only 30 days), so the public will petition the FAA to have the comment period stay open for longer.

 

The Administrative Procedure Act (“APA”), the go-to text on administrative law, indicates that the notice-and-comment process allows for changes to be made to the proposed rule based on the public comments received. Nonetheless, the courts have required that any changes made in the final rule be of a type that could have been reasonably anticipated by the public – a logical outgrowth of the proposal. If a change is not a logical outgrowth of the proposal in the NPRM, an agency is required to provide the public with a further opportunity for comment.

 

Once this process is completed, the FAA then issues its Final Notice of Rule Making (“FNRM”). In doing so, the FAA Administrator will review and analyze the comments received and decide whether to proceed with the rulemaking proposed, issue a new or modified proposal, or take no action on the proposal. At this point, the final rule is published in the Federal Register and a copy is placed in the rulemaking docket. Essentially, anyone that disagrees with the final rules or accompanying analysis issued by the Administrator may file a petition for reconsideration explaining why they believe the administration is wrong. The Administrator will then issue an order granting or denying the petition. Alternatively, as long as the Administrator has addressed an issue, the parties who disagree with a rule that affects them may seek court review of the decision. We predict that there will definitely be some judicial review of the new UAV registration regulations.

 

The foregoing is the process that would be involved if the FAA were going about the drone registration regulation in the “normal” fashion. Seemingly, that is not what is happening here. Instead, the FAA and the DOT are treating drone registration as an emergency situation. It’s not as if they haven’t known for some time that they needed to come up with a solution for integrating drones/UAVs into the National Airspace System. Again, the best solution is rarely the solution that is developed in a month’s time.

 

Nonetheless, the APA permits a pseudo emergency rulemaking process, where the FAA can finalize rules without first publishing the proposed rules in the Federal Register. This exception, however, is limited to cases where the agency has “good cause” to find that the notice-and-comment process would be “impracticable, unnecessary, or contrary to the public interest.” These situations usually include emergencies where problems must be addressed immediately to avert threats to public health and safety, minor technical amendments, and corrections where there is no substantive issues, and some instances where the FAA has no discretion to propose rules because Congress has already directed a specific regulatory outcome in a law. However, the FAA must state its reasoning for finding good cause in the preamble of the final rule, published in the Federal Register.

 

So what are our predictions? Will the FAA be able to get these regulations out by the December deadline? It’s hard to say. There are a few hurdles that the administration will have to get over. First, will the “task force” of drone industry leaders be able to come up with a palatable plan? This plan would have to account for the process of registering drones, how registered drones will be tracked, the consequences of not registering a drone…and the list goes on. Once the “task force” finally answers these hard hitting questions (in a month), will the FAA (a government agency) be able to efficiently and effectively administer and issue the new regulation by December? It remains to be seen. All that can be said right now is that the FAA knew that this was coming and they chose to wait until the last minute. Whether or not they will be able to come up with a quality regulation by December is going to be an interesting process to watch.

 

If you have any questions about the new UAV regulations, the FAA rulemaking process, how to obtain a Section 333 Exemption, or any other aviation law question, please contact a drone attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.