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Loaning Out Your Aircraft [Part 2]

In enforcement actions, the FAA has the option of initiating a certificate action (read: suspension or revocation) or assessing a civil penalty. In some cases, they may pursue both.Background
In enforcement actions, the FAA has the option of initiating a certificate action (read: suspension or revocation) or assessing a civil penalty. In some cases, they may pursue both. Often, an Administrative Law Judge (ALJ) will change a proposed certificate action to a civil penalty if he or she thinks that the deterrent presented by the outlay of cash means more to the errant pilot than a suspension. Example: If you’re a private pilot who flies for fun, a cash penalty may be rather damaging, but if you depend upon aviation to put bread on the table -- and the offense is substantial -- a suspension may be in the cards.

The Courts: Civil penalties under $50,000 can be (and usually are) handled before NTSB law judges, whereas those over $50,000 will more often end up in U.S. District courts -- where the rules of evidence and other legal procedures are more strict than the more informal hearings conducted by ALJs.

Let the Games Begin
The case of your loaned-out aircraft committing an offense without you at the controls (see last month's article) is headed for an ALJ. So, the litigation tactic suggested by your counsel is one popularly known as the “dog bite defense.” It goes something like this: “My dog didn’t bite you, my dog doesn’t bite, I don’t have a dog.” …sort of covers all the bases. Well, you don’t have a convincing alibi for your whereabouts at the time your airplane was putting on the impromptu airshow, so claiming ignorance seems like a good idea. After all, what’s the worst that could happen?

[Let the record show this as Mistake #3 -- now strap in.]

A pilot can be “convicted” (assessed a civil penalty and/or suffer suspension or revocation) on the basis of circumstantial evidence alone. Although the FAA bears the burden of proof of each and every element of the alleged offense, it may do so using hearsay testimony and broad inference. Also, the ALJs who hear these cases aren’t dumb. They’ve heard just about every lame excuse and “it was my evil twin” alibi imaginable, and have sole discretion in determining the credibility of witnesses. Translation: If you claim it wasn’t you flying and you don’t know who was, but the plane wasn’t stolen and the FAA produces people who saw your plane involved in FAR-breaking activity … well, my friend, you just screwed the pooch. Now, if a civil penalty is imposed that you can’t pay, your aircraft can be legally seized and sold to satisfy the fine -- and the NTSB and appellate courts aren’t going to be any more sympathetic than the ALJ was.

Moral: Do *not* loan your airplane to anyone unless you are absolutely sure that it won’t be intentionally used to violate some federal regulation. If, God forbid, the person you loan it to causes death or injury, in some states [California, for example] you are absolutely liable for consequent damages -- regardless of fault on your part.

Matter of Fenner [FAA Order No. 96-17, Docket CP935So414 (May 3, 1996) and 49 USC Section 40102(32) and FAR 1.1

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About This Author:
As a practicing attorney, Douglas Marshall was admitted to the California Bar in 1973; the Ninth Circuit, all CA federal courts in 1973-79; and the US Supreme Court in 1984. He has represented individual certificate holders in FAA enforcement matters and several major airlines in labor litigation and mediation.

Marshall is currently an Assistant Professor of Aviation at the University of North Dakota, where he teaches aerospace law and airline operations and management.

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