In Fenner, a pilot loaned his airplane to an unidentified pilot who operated
it in a reckless manner. Even though the owner of the airplane was not on board, the
Administrator concluded that the owner had “operated” the airplane in violation of § 91.13,
91.111, and 91.113 because he had given the pilot permission to use the aircraft. This
conclusion was based on the statutory definition of “operate aircraft”2 and the regulatory
definition of “operate.”3
If an owner had leased his plane to an individual, who was known and verified, who then terminated the lease as per its terms, (legally), but then flew the aeroplane? The flight was outwith the lease arrangement and was unknown to the owner because the aeroplane should have been tucked up in a hanger awaiting collection. The individual then flew it recklessly damaging the plane in the process. He then asked the owner to come and collect his damaged asset. Where does the owner sit with relation to the FAR’S, and where would the pilot find himself legally in relation to the FAR’S? This in relation to the above quote.
The ubiquitous buzzword is “operator” which may be and often is a person other than the pilot. As the aircraft was of US registry it’s instructive to recall an FAA decision finding, based on statutory and regulatory definitions, that an aircraft owner “operated” an aircraft which had been flown with permission, carelessly and recklessly, by another pilot. In the Matter of: Ramon C. Fenner, 1996 WL 336049, 1996 FAA LEXIS 1224 (FAA Order No. 96-17, 3 May 1996)
Yes, but come on. Fenner refused to identify the pilot of his aircraft, which had been used to buzz a National Guard helicopter twice. The FAA inspector testified that if the FAA had known the identity of the pilot, they would have sought to suspend the pilot’s licence, rather than seeking a civil penalty against Fenner. The principle is not very different to that applied to the owner of a vehicle under Section 172 of the Road Traffic Act.
but then flew the aeroplane?
Without permission? I would call that theft.
I would call that theft.
Unfortunately not in the UK. Theft must involve “..the intention to permanently deprive..”. That is why we have TWOC (Taking [a motor vehicle] Without Consent.)
The facts in Fenner and the possibility of an alternative outcome do not change the statutory and regulatory definition of operator as found in that case or in Gatewood. In Gatewood the Administrator made no apology for going against NTSB precedent in applying a standard of strict liability: “[t]here was no evidence in [the Fenner] case that Mr. Fenner could have anticipated that the pilot would fly the aircraft in such a reckless manner.”
The Administrator’s earlier case law was more reasonable. Administrator v. Bischoff, 2 NTSB 1013, 1014 (1974):
“… We hasten to add that not every ‘operator’ who technically comes within
the definition [14 CFR 1.1, 49 USC 40102(32)] could be held responsible in an enforcement action under
regulations such as [14 CFR] Sections 91.79(c) [now 91.119(c) and 91.9 [now 91.13]. Rather, the operator must be shown to
have been involved in the flight in such a manner that it can reasonably be inferred that,
in the absence of any evidence to the contrary, he participated in, authorized, or permitted
Beechbaby, the definition at 49 USC 40102(32) makes it clear that the owner is not the operator when he does not cause or authorise the operation of the aircraft.
Graham, the UK Air Navigation Order doesn’t apply to a US-registered aircraft, assuming responsibility hasn’t been transferred to UK under the Chicago Convention, outside UK. Wasn’t the accident site outside UK territorial waters?
Not sure the FARs are your biggest issue, in Europe. It will be whether the insurer pays out, and they should if the flight was unauthorised. My policy (Haywards) covers such a case.
The FAA would not pursue the pilot in Europe anyway (they would have to ask the CAA here to prosecute on their behalf). They might pull his papers though…
Thanks for the responses. Peter the point regarding the insurers is an interesting one. The CAA were not interested from any violation or safety perspective, no real surprise there, and sent a legal letter obviously anticipating a letter from the FAA which will not happen. The point of real interest for me is where the owner/operator sits in relation to regs.
@lesving, I agree….
Of course it is theft… just may not be prosecutable as such. In the UK and probably most other places, the police will not go anywhere near any crime which has a “civil dispute” angle to it. They don’t have the resources left at the end of the day, and only the very top specialists would have the intellectual capacity to grasp the intricate legal details.
As always there are two angles: the legality of the operation (whether the CAA will prosecute), and whether insurance will pay out. If you look up the CAA prosecutions list (google) you will see the sort of thing they go after. Mostly dodgy charters, politically provocative low flying, crashing at airshows, a few CAS busts where the pilot stuck the middle finger up at the interview, etc.
Did the insurance not pay out?
Did the insurance not pay out?
Of course it is theft
Reminds me of David Brent’s auntie.