Who’s In Charge Anyway?

Two recent air carrier accidents, among others, have exposed a continuing weakness in FAA surveillance of charter carriers.

Two recent air carrier accidents, among others, have exposed a continuing weakness in FAA surveillance of charter carriers. One of the accidents occurred in New Jersey involving a Bombardier Challenger and the other a Learjet 24 in California. You may have heard or read about them. Key issues in the accidents involved operating certificates and operational control, in addition to other clear violations of the regulations governing charter flights.

Changing scene
In selling charter flights under Part 135 today many hands now get into the act. The charter playing field is confused by certificate holders, management companies, charter brokers, aircraft owners, lessees, contractors, and the ever present doing business as (dba) fictitious business names of operators. While these various business entities may be perfectly legal in structure, they present a formidable challenge for FAA inspectors to determine responsibility for any particular flight and the necessity for finding out who has operational control of a flight.

Indeed, in addition to their technical training perhaps POI’s and PMI’s should receive basic legal training to understand the intricacies of these arrangements between the parties. Maybe a lawyer should be assigned to all FSDO’s in order to ferret out the legality of the business arrangements and their compliance with regulatory requirements.

The key item that must be in place is of course a Part 135 operating certificate. But from here on there are many operators and owners who continue to attempt to get around the rules by obfuscating their business plan with leases, contracts, and verbal deals that are usually set up to use a certificate contrary to the regulations. It would seem that sometimes it takes a Philadelphia lawyer to make sense of the deals that are created.

Threats to technicians
In past articles we have written about the threats to technicians involved as a director of maintenance, supervising the operation of aircraft under Part 135. Many times the director of maintenance on the certificate is a part-timer located remotely from the aircraft base. He may be a technician who works at the shop that maintains the aircraft. The difficulty begins when the operating and maintenance records are not readily available on a regular basis for review by this person and he is not in daily contact with the aircraft or the operating personnel. The chain of information and hands-on contact becomes stretched and sometimes nonexistent, which was the situation in one of the cases cited. This is where the POI or PMI should step in . . . but in many cases is absent. Technicians involved should also pay particular attention to what entity they are working for . . .

Keep in mind that your own insurance carrier (if you have one) would be interested in the fact that you are a director of maintenance for a Part 135 air carrier. They might be inclined to deny a defense and insurance coverage for your activities on behalf of this carrier where their exposure was enhanced without their knowledge. In the alternative, steps should be taken to make certain that your maintenance performance is covered under the air carrier’s or some other policy of insurance for the overall operation. This should be in writing and acknowledged by all parties involved. You can rest assured in the case of an accident that you may be under the gun for certificate action, civil liability, and or, at worst, perhaps criminal liability. Yes, there has been a trend over the years to hold professionals and corporations criminally accountable for unintentional but allegedly criminal conduct in regard to accidents. Professionals and corporations have never been immune from criminal culpability based on their status alone. Furthermore, the willingness of society to assess criminal penalties is on the rise.

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