experimental aircraft passenger warning

FAA implements new requirements for carrying passengers in experimental aircraft

When the FAA issued its final Sport Pilot rule, it quietly removed a privilege that has existed for years. In the past, pilots could carry passengers in certain experimental aircraft regardless of whether they held the appropriate category and class ratings. For example, you could hold a private pilot certificate with an airplane single-engine land category and class rating and go out and fly a passenger in an experimental helicopter with no training required. The FAA cited an increased number of accidents attributed to a lack of category and class ratings as the reason for the change.

The rule, which took effect on September 1, 2004, now requires any pilot who holds a recreational or higher level pilot certificate to also hold the appropriate aircraft category and class rating for any experiment aircraft in which they want to carry passengers.

However, the FAA is giving experienced pilots who have logged time in experimental aircraft for which they do not hold the appropriate category and class ratings until the end of this summer to apply to the FAA for a new experimental aircraft rating.

Details of the rule and instructions for receiving credit for flight experience are available on the FAA's Web site .

May 10, 2005

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Maintenance Matters

A&P mechanics and Experimental aircraft.

Experimental aircraft must have this passenger warning and an EXPERIMENTAL decal in places that are visible to any passenger. A condition inspection should not be signed off if these items are missing. A mechanic who has only worked on certificated airplanes may not be familiar with this requirement.

With more and more Experimental/Amateur-Built aircraft being owned by people who did not build them, there is more and more demand for A&P mechanics to perform maintenance and condition inspections on these aircraft. Unfortunately, there is little in the typical formal training or testing of A&Ps that prepares them specifically for these tasks. At first glance it may seem that the Experimental world is pretty much the “Wild West” where anything goes and aircraft are exempt from the normal rules, but that is an exaggeration at the very least. It is in fact a place where the rules are less clear, or at least less well defined, but good aviation practices still apply, or at least they should, if you, as an A&P mechanic, are going to sign your name to them. We should note that for the purposes of this article, Experimental refers primarily to Experimental/Amateur-Built (E/A-B).

A compression test should be part of every Experimental condition inspection, just as it is for a certificated annual inspection. Record the results in the engine logbook.

In the certificated world an A&P must have inspection authority (IA) to perform an annual condition inspection or sign off a major change, but for Experimentals this is not the case. An A&P (without IA) may perform a condition inspection, and anyone may perform maintenance or make a major change, subject to that aircraft’s operating limitations. This means that literally anyone who has the owner’s permission may modify and/or maintain an E/A-B aircraft with no prior certification or formal training. The intent of the E/A-B category is to allow for experimentation for the education and recreation of those involved. The only limits on that freedom are that once a year, either the holder of a repairman’s certificate for that aircraft or a licensed A&P mechanic must attest to the airworthiness of that aircraft, and after any major change, the aircraft must be returned to the Phase I flight testing period for at least 5 hours, until its airworthiness can be once again demonstrated. This major change language can be found in the operating limitations assigned to that aircraft. The good news is that this opens up a whole new world of potential customers to an A&P mechanic. The bad news is that this opens up a whole new level of responsibility to any A&P mechanic who chooses to put his or her name in someone’s logbook after these words: “I certify that this aircraft has been inspected on (date) in accordance with the scope and detail of 14CFR part 43, appendix D, and was found to be in a condition for safe operation.”

An oil change and inspection of the oil filter should be a part of an Experimental condition inspection, just as it is a part of a certificated annual inspection. Note the oil change in the engine logbook.

Qualifications

As was said before, there are no qualifications for working on an E/A-B aircraft. However, the condition inspection must be signed by the holder of a repairman’s certificate, which is only issued to the original builder, or by a licensed A&P mechanic. The builder obviously has experience working on the aircraft he or she built, but if the builder is no longer the owner, he or she is not likely to be available for the condition inspection, which leaves it to an A&P mechanic. Assuming that A&P has experience performing condition inspections on other aircraft, Experimental or not, there are no other qualifications required by the regulations.

Poor practices such as using zip ties to secure hoses and wires to engine mount tubes is not strictly prohibited, but it is not consistent with good aviation practices and should be corrected. As an A&P mechanic you do not have to accept poor practices just because they are not “illegal.”

That said, prudence and good judgment strongly recommend a reasonable familiarity with the type of aircraft involved. For example, a mechanic with lots of experience working on Lycoming and Continental engines would be ill-prepared to perform a condition inspection on a plane with a Rotax engine unless he or she had received additional training on Rotax engines. Similarly, a person with no composite experience would be well-advised to seek out the assistance of a more qualified person if a composite airplane is to be inspected. These are not regulations, just common sense.

The Inspection Process

The scope and detail of a condition inspection on an E/A-B aircraft is pretty much the same as for a certificated aircraft. 14 CFR 43, appendix D outlines the process. The problem for the A&P mechanic is that there is no type certificate data sheet (TCDS) or factory approved service instructions for an Experimental aircraft, because there is no type certificate. Experimental aircraft builders may build their planes any way they wish, as long as they are willing to attest to the plane’s airworthiness, convince the FAA that there is nothing obviously un-airworthy about it, and successfully test it as per the operating limitations. As an A&P it is your responsibility to certify that it is airworthy at the time you inspect it (or not), but you will not have any definitive criteria for making that judgment.

Be sure to do a thorough check of enclosed areas that may be accessible to unwanted pests. You just never know what you may find.

“No definitive criteria” does not mean no criteria at all. There is AC 43.13-1B, which covers a great deal of what is and what is not airworthy. An Experimental builder can certainly say that this does not legally apply to Experimental aircraft, but you as an A&P can also say that you are not going to sign the condition inspection. In addition to industry standard practice, the manufacturer of each kit has plans and/or assembly instructions that can shed light on how the plane was supposed to be built. These are not legally binding, but they are a good starting point for evaluating the construction of a plane if there is some doubt about its airworthiness. Hopefully these have been forwarded to the current owner, but sometimes not, so you may have to do some digging to find what you need.

Every successful condition inspection will end with this sentence in the aircraft logbook. Your signature, name, and certificate number need to be included, along with the date and tach time.

Perhaps the biggest difference between certificated and Experimental aircraft when it comes time for a condition inspection is that you cannot assume that the aircraft in question was built according to plans. Cessnas are built according to a type certificate, Experimentals are not, and may or may not be built according to the kit maker’s plans. There is some satisfaction in knowing that an Experimental airplane has been flying for at least a year before you got there, but there is an added layer of responsibility placed upon the A&P performing a condition inspection if he or she is not familiar with the type of aircraft being inspected. Luckily, a large number of Experimentals are one model or another of the RV series, and there is a lot of similarity between the various models, so an investment of time in the first condition inspection will likely pay off in the future.

ADs and Service Bulletins

As a general rule, airworthiness directives (ADs) do not apply to Experimental aircraft. In fact, the FAA has said clearly that ADs do not apply unless Experimentals are specifically called out in the AD as being covered. No such ADs have been issued with this requirement as of this writing. However, the general admonition that an aircraft must be in a condition for safe operation does apply. This presents a conundrum for the A&P mechanic, in that he or she must decide what needs to be applied to any particular aircraft. Certainly, if a propeller hub has an AD in effect that says the hub needs to be inspected every 100 hours, it is not unreasonable for an A&P mechanic to demand that the inspection be performed before signing the condition inspection. The owner is also not legally required to comply, just as you, the A&P mechanic are not legally required to sign the condition inspection if you aren’t comfortable with the aircraft.

Experimental airplanes are very seldom subject to airworthiness directives, which can at most apply to certificated components such as engines and props. But many kit makers issue service bulletins that should be complied with and noted in the airplane’s logbook. This is not legally required, but is highly recommended.

Service bulletins are similar in that they specify changes and/or inspections that the kit manufacturer believes are prudent for continued safe operation, but they have no legal status and are thus not required. There is also a great deal of variation from one kit maker to the next as to how diligent they are about issuing service bulletins. It is my opinion that service bulletins should be addressed as part of the condition inspection. How they are addressed may be subject to some interpretation, depending on the aircraft involved and how it was constructed, but skipping a service bulletin should only be done for a very good reason, few of which come to mind.

Where Do You Draw the Line?

As an A&P mechanic you are faced with requiring your customer to do things that are not absolutely required under the law but make good sense. The time to talk about these things is before you have done a lot of work that you have not yet been paid for. If you don’t do this at the beginning, it can put you in a poor position to refuse to sign a condition inspection when the owner does not want to spend the money or take the time to comply with a service bulletin or AD. Establish boundaries up front and stick to them. If you know of applicable ADs or service bulletins (you should make it your business to know), then point them out to the owner and make your expectations clear.

Not every A&P is troubled by this situation. I recently began a condition inspection on a 19-year-old RV-4 that had no service bulletins signed off or performed. There were 18 signed condition inspections in the logbook when I got there and nothing else (which is admittedly perfectly legal), but there is now a list of service bulletins that have been completed and signed by the owner, since he is the one who did the work. These things weren’t difficult or expensive to do, and the airplane is now safer because of it.

A budding entrepreneur came up with a fix on his own for something that may or may not be a problem on some RV models. The owner of this plane decided that he would feel better with these reinforcements installed. As an A&P mechanic signing off on a condition inspection, you will need to decide if such an addition to the airframe is a detriment to safety. In this case, it seems likely that it will do no harm.

Major Changes

The definition of a major change or modification is similar for Experimental and certified aircraft, but how they are handled is quite different. The operative section of the FARs is 21.93. This defines a major change as any change that is not a minor change. A minor change is one that “has no appreciable effect on the weight, balance, strength, reliability, operational characteristics or other characteristics affecting the airworthiness” of the aircraft. Added clarification will be available from the local FAA FSDO, which must be contacted and provide a written response for any requested major change and will also assign a test area as required by the operating limitations.

The biggest differences an A&P will see with a major change are these: Anyone can do the work, including a non-builder owner, and a major change requires re-entering Phase I Flight Testing for a least five hours, along with the required logbook entries. No engineering data is required. Form 337 is not applicable. There are no STCs or field approvals. The owner just does the work and flies it. However, within the next several months, a condition inspection must be signed off by someone who is willing to look at the major change and declare it (and the rest of the plane) safe for flight. That someone is either the original builder and holder of the repairman’s certificate or an A&P mechanic such as yourself.

Some major changes require additional paperwork—Form 8130-6. These changes include going from a fixed to a constant-speed prop or vice versa and going from one type of engine to another—reciprocating to turbine for example.

The logbook should note the major change before the first test flight and be properly endorsed at the end of the flight test period as per the operating limitations. If a major change has been performed without the appropriate logbook entries and flight testing, it is in violation. You should not sign a condition inspection on such an aircraft. Don’t forget that a major change will require new weight and balance paperwork. You will need to verify that it has been done or take care of it yourself.

If possible, it would be time well spent to talk to the person who performed the major change work to get a better feel for the scope of what was changed. For example, a relatively common major change is to switch from an auto-conversion powerplant to a Lycoming engine. That change can involve alterations to not only the engine and the motor mount, but also the prop, the cowl, the fuel system, and the electrical system, plus other things. You may be the first person to give this work a thorough examination since it was done. You will have much to consider.

Why Get Involved?

By this time, it sounds like an A&P mechanic would have to be a little crazy to take on an Experimental condition inspection for a few hundred dollars and who knows how much liability. There is something to that argument, but it isn’t really as bad as it may first appear. Most owners want to have safe planes and will do what it takes to get them that way and keep them safe. And most Experimentals are fairly simple and fairly well built. Finding what is wrong with most planes and fixing it is not brain surgery. This is a large potential market and this is work that you as an A&P can do. That said, you will need to learn how to spot problem planes and problem owners quickly if you are to avoid trouble.

Just as with certified airplanes, Experimentals that haven’t flown for quite a while are likely to have more problems than planes that fly regularly, and that means a bigger bill to get it through a condition inspection. Owners that talk about not wanting to spend any money or about not being legally obligated to do needed repairs or maintenance are likely to cause you grief. You don’t have to work for them and, in at least some cases, simply shouldn’t. But you can also help them save money by letting them do the work, except for the actual inspections. The best thing to do is take the time to get familiar with the aircraft and then talk to the owner about what you see and what you will require to be done to get the plane signed off. If there is not a meeting of the minds little has been lost. Create reasonable expectations on both sides and then meet them. If this can’t be done, then move on.

Dave Prizio is a Southern California native who has been plying the skies of the L.A. basin and beyond since 1973. Born into a family of builders, it was only natural that he would make his living as a contractor and spend his leisure time building airplanes. He has so far completed three—a GlaStar, a Glasair Sportsman, and a Texas Sport Cub—and he is helping a friend build a fourth, an RV-8. When he isn’t building something, he likes to share his love of aviation with others by flying Young Eagles or volunteering as an EAA Technical Counselor. He is also a licensed A&P mechanic and a member of the EAA Homebuilt Aircraft Council.

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Passenger Warning Placard - Vinyl

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Great decal. Sticks well. Looks great on the dash of my Kia.

PASSENGER WARNING DECAL

Not a quality product. not durable enough for my instrument panel

Always the best of service. With out you my project would not be where it is.

Please note, Aircraft Spruce's personnel are not certified aircraft mechanics and can only provide general support and ideas, which should not be relied upon or implemented in lieu of consulting an A&P or other qualified technician. Aircraft Spruce assumes no responsibility or liability for any issue or problem which may arise from any repair, modification or other work done from this knowledge base. Any product eligibility information provided here is based on general application guides and we recommend always referring to your specific aircraft parts manual, the parts manufacturer or consulting with a qualified mechanic.

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• General Discussion

New Wording for Passenger Warning

• Thread starter Mel
• Start date Sep 8, 2017

Legacy Member

• Sep 8, 2017

Just a "heads-up", as of September 21st, 2017, new ruling on the Passenger Warning; Except for single place aircraft, the following placard must be displayed in the aircraft in full view of all occupants: “PASSENGER WARNING—THIS AIRCRAFT DOES NOT COMPLY WITH FEDERAL SAFETY REGULATIONS FOR STANDARD AIRCRAFT.” Note that Experimental, Light-Sport, or Amateur-Built is no longer required wording. This makes for a more "standardized" placard.  

Well Known Member

I hope this is an April Fools joke a few months early. Tim  

tspear said: I hope this is an April Fools joke a few months early. Tim Click to expand...

Is this only for newly certificated E-AB's, or is it retroactive? If retroactive, are new ops lims required?  

It is NOT retroactive. Everything you have now is still good.  

engineerorange

So is my passenger warning on the panel of my yet to be inspected airplane going to cause an issue with the inspector? I used the old wording.  

Not necessarily so. Better wording would be: "This aircraft is not required to conform to...." I don't remember seeing a notice and comment opportunity on this, if it was deemed a regulatory change.  

Auburntsts said: Why? All they did was drop the " IS AMATEUR-BUILT" from the current placard. I do hate it though as to me it implies that my aircraft is some how sub-standard. Click to expand...

Mel said: The "Why" is to somewhat standardize the placard so that a different placard is not required for different category of aircraft. i.e. the same placard works for experimental amateur-built and experimental light-sport aircraft. Click to expand...

engineerorange said: So is my passenger warning on the panel of my yet to be inspected airplane going to cause an issue with the inspector? I used the old wording. Click to expand...

My placard has the old wording ... and I wouldn't change it, because if I did, the second placard beneath it wouldn't make sense. "The Titanic was built by professionals; the Ark was built by amateurs."  

Auburntsts said: Mel I wasn't asking you why - I asking Tim why. Click to expand...

Mel said: Just a "heads-up", as of September 21st, 2017, new ruling on the Passenger Warning; Except for single place aircraft, the following placard must be displayed in the aircraft in full view of all occupants: ?PASSENGER WARNING?THIS AIRCRAFT DOES NOT COMPLY WITH FEDERAL SAFETY REGULATIONS FOR STANDARD AIRCRAFT.? Note that Experimental, Light-Sport, or Amateur-Built is no longer required wording. This makes for a more "standardized" placard. Click to expand...

RV7A Flyer said: What's the source for this? Click to expand...

PerfTech said: ....Just add another sticker that says! "This superior flying machine is built far beyond those standards" Click to expand...

• Sep 9, 2017

Bill Boyd said: ... and I wouldn't change it, because if I did, the second placard beneath it wouldn't make sense. "The Titanic was built by professionals; the Ark was built by amateurs." Click to expand...

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Liability for Homebuilt Aircraft

While homebuilt aircraft have been the fastest-growing segment of aviation during the 1980s and 1990s, some predict that homebuilt aircraft liability litigation will be a growth industry of the next decade. accidents like the 1997 long-ez crash that killed john denver raise thorny questions about who’s legally liable: the kit manufacturer, amateur builder, or pilot can a kit manufacturer or amateur builder escape liability by means of a waiver or disclaimer is a homebuilt covered by the gara 18-year statute of repose avweb’s aviation law editor phil kolczynski sorts through this thicket and offers some concrete suggestions., editorial staff.

• Fantasize about an aircraft made of ultramodern composite materials that looks like something out of a futuristic movie and is compact enough to be stored in your garage?  
• Envision a plane that can carry passengers over 300 MPH, take off from short landing strips and operate VFR or IFR to 18,000 feet?  
• Anticipate that your "dream machine" will cost a fraction of the price of a "previously owned" Cessna, Beechcraft or Piper?  
• Appreciate that you can equip your dream machine with a variety of engines or propellers even though they are not already FAA approved?  
• Grin with anticipation because even though you have limited experience, you can build an aircraft yourself in a garage or rented shop as an "amateur"? (In fact the FAA will insist that you maintain your "amateur" status, and not allow a professional to do more than 50% of the construction, so that it can qualify for experimental category certification.)  
• Plan for the day that you will put the sexy words "EXPERIMENTAL" on the side of your new aircraft and prepare knowing you can qualify for a Special Airworthiness Certificate?  
• Smile, because you may never have to wait for an inspection by an FAA employee who has more aircraft to inspect than hours in a government workday. Instead of anxiously waiting for the arrival of an FAA employee, who probably has no experience with your unique design, you can schedule an inspection by a "technical counselor" of the Experimental Aircraft Association or a "Designated Airworthiness Representative" (DAR), who is a knowledgeable private citizen appointed by the FAA.

If you pursue this dream, you will probably do so as a member of the fastest-growing fraternity in general aviation. From the early 1970s, the membership of the Experimental Aircraft Association (EAA) has grown from 29,000 members to 165,000 current members.

Homebuilts: The New General Aviation Market

There has been a 600% increase in the number of homebuilt aircraft registered with the FAA since the 1970s. In the 1980s production of single-engine factory-built aircraft just about came to a halt. Manufacturers of such production aircraft were the targets of many product liability lawsuits, which led to large verdicts and increased insurance premiums. Corporate ownership of small GA aircraft became less advantageous with the demise of government tax breaks and other financial incentives. Modern labor economics, environmental surcharges, and factory production costs have escalated. As a result, "previously-owned" single-engine general aviation aircraft have become increasingly expensive. All of these factors created a wide-open market for homebuilt aircraft — a trend which continues today.

The decline in the manufacture of small factory-built aircraft is not the only reason for the ascendancy of the homebuilt aircraft. Under the Federal Aviation Act, the FAA wears two hats, one to maintain safety and the other to promote air commerce. In its role of promoting air commerce the FAA has promulgated supportive regulations and advisory circulars encouraging the development of homebuilt aircraft; e.g., Advisory Circular 20.27D. Thus, anybody can buy the plans and/or parts, and obtain a special airworthiness certificate to operate the aircraft in the experimental category, if the amateur-builder does more than 50% of the fabrication or assembly, and does so solely for his own education or recreation. [14 CFR 21.191(g)]

Homebuilt Litigation: The Next Growth Industry?

Plaintiffs have often been reluctant to sue kit manufacturers because the manufacturers have always "gone bare." They have manufactured and sold kits without product liability insurance. The fear of winning a long and costly product liability battle against a kit manufacturer only to face the difficulty of collecting a judgment against assets, which may only consist of plans and parts, has been sufficient to dissuade most attorneys from pursuing such cases on a contingency fee.

Now more manufacturers are making money and getting "established." A serious effort is being made by the EAA to arrange Product Liability Insurance from Lloyds of London for qualified kit manufacturers. There is a strong market for inexpensive kit airplanes and gyroplanes, both domestically and abroad. Add to these factors a recognition that an excellent financial opportunity exists to sell such aircraft kits and it is predicted that many business groups with financial depth will be getting into the market. While this will remain a high-risk industry there are new legal protections available to manufacturers and builders.

Are Homebuilts Covered by GARA?

GARA applies to "FAA-certified" aircraft. Amateur-built aircraft are indeed "certificated" aircraft, in that they receive a Special Airworthiness Certificate. Thus, amateur-built aircraft should receive equal protection under GARA with their factory-built brethren.

However, the Act does not spell out who is the manufacturer of a homebuilt, so courts will turn to product liability laws for an answer. Nor is the Act clear on how to measure the 18-year term for a "kitplane." Does it start when the kit is assembled into a finished product, or when the kit is first delivered? What if the kit sits on a shelf for 10 years and is then assembled and flown? In my opinion, the 18 years should start from when the fully-assembled kit is first certificated as an aircraft. (But there's no guarantee that a court would see it that way.)

How Is a Homebuilt Aircraft Created?

In March 1994, Kitplanes magazine conducted a survey of 204 manufacturers of plans and kits. Of the 70% who responded, 42 sold plans only, 68 sold kits only and 44 sold both kits and plans.

A recent study revealed that there are four completed kit-built aircraft for every one completed plans-built aircraft. According to the participants in the survey, the completion rate among kit buyers was in excess of 60%, whereas the completion rate for the purchasers of plans alone is less than 5%. [Source: Paper presented by Miami Attorney Robert C. Owens at the Twelfth Annual Embry-Riddle Air Law Symposium, Daytona Beach, Fla., January 22, 1999.]

Once the builder acquires the kit, the amateur-builder, as the FAA calls him, is required to do the majority of the fabrication and assembly of the kit. To some extent the builder can hire others to inspect or oversee his personal construction or assembly of the kit. However, the amateur-builder cannot legitimately hire qualified professionals to actually perform the construction or assembly. [FAR 21.191(g)] The homebuilder may purchase the engine, propeller, brakes, wheels, pulleys, bolts, bearing and rivets from a subcomponent supplier and incorporate these items into the homebuilt aircraft.

During assembly, the homebuilder should have the aircraft inspected by knowledgeable persons approved by the FAA. [Advisory Circular 183.33A] He should also maintain a construction log with photographic documentation of the building process. When the aircraft is completed, it must bear the marking "Experimental" on the fuselage. Further, a placard must be put in the cockpit stating:

Upon completion of construction, the amateur-builder can submit a FAA Form 8130.7 application with the progress log to the FAA or a designee of the FAA for a post-construction inspection of the new aircraft. After the inspection, a special airworthiness certificate is issued but with operating limitations that the airplane may be flown only within a limited geographical test area for a certain number of hours. Upon completion of these proving flights, the restrictions are lifted and the homebuilt aircraft can be flown like any other general aviation aircraft.

An experimental-category aircraft can carry passengers, but it cannot be used to carry passengers for compensation or hire. Annual condition inspections are required but may be signed off by a FAA licensed A & P mechanic. Alternatively, the homebuilder himself may sign off annually but only if he has obtained a "Repairman" certificate. [Advisory Circular 20-27D, Appendix 9; Advisory Circular 65-23A]

Who Has Product Liability Exposure?

Understand that product liability laws are designed to protect consumers. Courts consider homebuilt kit purchasers to be consumers. Passengers in a homebuilt would be considered consumers vis a vis the product. The manufacturer who sells a kit with a defect in it, or the homebuilder who assembles it negligently, will generally continue to have product liability exposure for injuries to any consumer.

The Kit Manufacturer

Some people use the term "manufacturer" quite broadly with respect to homebuilt aircraft. From a legal liability point of view, one needs to evaluate the function of each party in order to determine who was the manufacturer.

Typically, a company in the business of selling plans and parts in a package is called a kit manufacturer. The kit manufacturer may have continued product liability exposure for the plans and parts even beyond the first purchaser. This product liability exposure can arise from a possible defect in the design itself ("design liability") or the instructions which accompany the design (another form of design liability).

Exposure can also result from a lack of adequate warnings which should have accompanied the design, or ambiguous warnings which came with the kit ("failure-to-warn liability"). Liability may also result from misrepresentations made about the capabilities of the finished product including its performance characteristics ("negligent misrepresentation or fraud liability").

If the kit manufacturer has selected substandard materials for any of the parts or components sold as part of the kit, or has pre-fabricated any of these components incorrectly, the kit manufacturer may be exposed to liability ("manufacturing liability") under the laws of most states. Normally, if the only thing sold is the design, the only exposure would be for the design itself and any of the instructions or warnings that accompany or should accompany it. As a general rule, the more the kit manufacturer puts into the product he sells, the more exposure the kit manufacturer has.

A point of law: The kit manufacturer, as a commercial seller of a mass-produced product, is held to a higher standard than a homebuilder. He will have strict product liability exposure. The product liability exposure is "strict" because a plaintiff will not normally be required to prove that the manufacturer was negligent. A plaintiff need only prove that a defect existed when the product left the manufacturer's control and that the defect then caused injury.

The Amateur-Builder

If the homebuilder selects and adapts components such as the engine propeller, tires, brake assemblies, etc. and these components are not called out specifically by the design, such homebuilder may assume responsibility of a designer and/or a manufacturer. Usually, a homebuilder is not in the business of selling a mass-produced product to consumers. Accordingly, he will normally have product liability only when a plaintiff can prove he was negligent in building the aircraft.

So Who's Liable?

The ultimate test of the product liability of the homebuilder versus the kit manufacturer will be a liability trial with a passenger or other innocent party as the plaintiff. The plaintiff must prove that a defect in the aircraft caused injury. Normally in this type of case, the plaintiff must also prove who designed and/or manufactured the defective component which caused the crash.

If it turns out that the defective component was a component that was not modified by the homebuilder, then product liability may be traced back to the original designer and kit manufacturer. If, on the other hand, a defect is attributable to the work of the homebuilder, the homebuilder may bear exclusive or primary liability. If the homebuilder goes out and purchases a pre-fabricated accessory or component and it turns out that accessory or component is defective, the accessory or component manufacturer may have product liability exposure.

Kit Manufacturer Defense #1: Modification

Case #1: The Assembler

A homebuilder buys plans and components and raw materials from a kit manufacturer. He or she follows the design, uses prefabricated parts in the kit without modification, and fabricates the remaining materials to assemble the finished product. After a proper inspection, the homebuilder is entitled to the issuance of a special airworthiness certificate and can operate the aircraft as an experimental category aircraft.

If a crash occurs because of a product defect which can be traced to the original design or kit components, the kit manufacturer may have strict product liability exposure. If the kit was negligently assembled or manufactured, the builder may have negligence product liability for his substandard work.

Case #2: The Tinkerer

Assume instead that the homebuilder does not follow the design and kit assembly instructions in all respects. Instead, the homebuilder modifies a portion of the design or alters some of the components in the kit.

If the resulting aircraft crashes and a defect can be traced to the modification work done by the homebuilder, then the kit manufacturer may have a successful defense against liability. If, however, the defect can be traced to the original design or prefabricated kit components, and is not a result of the modifications performed by the homebuilder, the original kit manufacturer still has strict product liability exposure.

Case #3: The Modifier

If a crash occurs, it may be difficult to trace any product defect to the original kit manufacturer. If the kit seller can show that the finished product is not in conformity with his design, or that his components have been significantly altered, the kit manufacturer may have a complete "Modification" defense and the builder will have the exposure.

But Don't Count on It!

Beware that under the product liability laws of some states, the original kit manufacturer as a commercial seller of a consumer product may still have product liability exposure, even thought the design or kit materials had been modified or misused! Some courts will do almost anything to protect consumers at the expense of manufacturers and have held that a commercial manufacturer must anticipate a reasonably foreseeable amount of modification or misuse of their product.

Kit Manufacturer Defense #2: Pilot Error

Two recent crashes provide "case studies" of how accidents happen, why better training is needed and how pilots pay the ultimate price for their mistakes.

Case 1: The John Denver Crash

The accident occurred on October 12, 1997, about 5:30 in the afternoon. The Long-EZ, piloted by Denver, crashed into the Pacific Ocean near Monterey, Calif., where he had a second home. Denver was an experienced pilot, with over 2,750 flight hours, who had flown a number of factory-built aircraft. He had just purchased the Long-EZ a few weeks before the fatal crash, and had obtained only 30 minutes of checkout time in the Long-EZ.

The NTSB determined that a "probable cause" of the accident was the pilot's diversion of attention from the operation of the aircraft. It is believed that Denver inadvertently applied the right rudder while attempting to manipulate the fuel selector handle located over his left shoulder, resulting in the loss of control of the airplane. The report also determined that the pilot was responsible for inadequate pre-flight planning. The NTSB identified his failure to refuel the airplane when in a low fuel condition as causal because it left him groping about the cockpit in an attempt to select fuel at a low altitude. Thus, the Board blames the crash primarily on pilot error.

The NTSB also identified as causal "factors" in the accident two errors by the original homebuilder: (1) the decision to locate an unmarked fuel selector handle in a hard-to-access position; and (2) a decision place unmarked and uncalibrated fuel quantity sight gages in the cockpit. The Safety Board also commented on John Denver's inadequate transition training from his traditional factory-built aircraft to this homebuilt model. Apparently Denver did not possess a valid medical certificate but the Board did not consider this causal. There was also a question about modifications which may have created an "aft CG" condition.

If litigation is instituted, it will be for the failure of the original builder to properly install and mark the fuel selector handle and sight gauges. Without more information I cannot speculate as to whether other parties have exposure. It is not known whether the original builder used an "Exculpatory Agreement" when the aircraft was sold, or whether the most recent owner had John Denver sign such a disclaimer.

Case 2: The Rotary Air Force Case

A case was recently tried in federal court in Northern Ohio, which may be the first homebuilt air crash case involving a death to actually reach a verdict. The verdict was in favor of the defendant kit manufacturer.

The crash occurred apparently as a result of pilot-induced oscillations (PIO). PIO is a known hazard and a risk associated with the operation of gyroplanes. Evidence at trial showed that if the pilot had obtained the necessary training prior to attempting the operation of the gyroplane, that he should have been able to recover from a PIO condition. Unfortunately, the accident pilot, who had some prior ultralight and gyroplane experience, failed to obtain sufficient flight training in his new aircraft. Indeed, at the time of the accident, the pilot did not have a pilot's certificate! Thus, he was not legally qualified to act as pilot-in-command of the gyroplane.

The plaintiffs alleged that there were defects in the of the gyroplane resulting in a structural failure in the cheek-plate and/or box-beam assembly. Plaintiffs claimed that these defects caused the aircraft to go out of control and crash. After a hard-fought two-week trial which involved the use of expert witnesses on gyroplane piloting engineering and accident reconstruction, the jury unanimously found in favor of the defendant. There has been no appeal.

Plaintiffs were represented by plaintiff's attorney, Richard French of Cleveland, Ohio. The case was successfully defended by product liability defense attorney Allen Farcas of the law firm of Blatt, Hammesfahr & Eaton from Chicago, Ill. Some may recognize this law firm because Jack Harrington, Esq., founder of the Experimental Aircraft Association's Legal Advisory Council, is a partner in the law firm and supervises the defense of many homebuilt manufacturer cases.

Common Myths About Product Liability for Homebuilts

1. If the FAA certifies that the homebuilder constructed more than 50% of the finished product, the kit manufacturer is off the hook for product liability.

There are kit manufacturers who misunderstand the purpose of FAR 21.191(g). The "51% rule," as it is known, is a requirement of the FAA to ensure that the aircraft is in fact amateur-built. The craft is supposed to be primarily fabricated and assembled by a person who undertook the construction project solely for their own education or recreation. This is merely a regulatory requirement which allows the issuance of an experimental certificate to a homebuilder. [14 CFR 21.191(g)] However, compliance with the 51% rule does not mean that the original kit manufacturer is completely off the hook in terms of product liability exposure. This is true in most jurisdictions, even if all FARs have been complied with. Compliance with FARs is NOT a complete defense to product liability under most states' laws. (Of course evidence of FAR compliance is admissible and very helpful in the defense.)

2. Insurance is generally unavailable for homebuilt aircraft.

Kit manufacturers, on the other hand, have generally been treated as uninsurable, and normally go without product liability insurance in their business. The Experimental Aircraft Association is attempting to negotiate coverage for kit manufacturers through the underwriters at Lloyds of London.

3. The FAA inspects homebuilt aircraft before issuing a special airworthiness certificate to the homebuilder.

The fact of the matter is that currently, FAA employees often do not conduct many of the formal inspections of homebuilt aircraft. The Advisory Circular controlling the certification operation of amateur-built aircraft purports to describe an inspection by the "FAA" prior to the initial flight test. [Advisory Circular 20-27D, paragraph 5]

Nevertheless, FAA manpower constraints have resulted in an ongoing situation where FAA insptectors may not actually conduct preflight inspections of newly-assembled homebuilt aircraft. Instead, the FAA relies heavily on inspectors from the EAA Technical Counselor's program and Designated Airworthiness Representatives (DARs) to inspect amateur-built aircraft on behalf of the FAA.

Technical counselors from the EAA are experienced builders and offer advice to amateur builders. They inspect the components of the aircraft during the building process. DARs are FAA designees who are not employees of the FAA but who accept a certain amount of responsibility from the FAA to perform inspections regarding the building process of the homebuilt aircraft. They are authorized to collect a fee for their work. AC 183-33A, AC 183-35B.

Even though amateur-built aircraft may be certificated for operation without any employee of the FAA ever inspecting the aircraft, this does not imply a safety deficit. DARs and Technical Counselors are very experienced and specialized homebuilt inspectors, whereas the FAA employee who might be sent out to perform the inspection may have little or no experience with this type of aircraft.

4. It's safer to buy an FAA-certified kit.

The FAA does not certify or approve kits! [Advisory Circular 20-27D, paragraph 7, 6/22/1990] The FAA only evaluates kits to determine whether the kit appears to have the ingredients necessary to allow an amateur-builder to qualify under the 51% rule. [FAR 21.191(g)]

5. The homebuilder should disassemble his amateur-built aircraft before selling it to avoid product liability.

"IF" it were possible to restore the aircraft to its original kit form, and "IF" all plans, instructions, warnings and material were conveyed in the identical condition they were in when previously purchased new from the kit manufacturer, and "IF" this were all meticulously documented, photographed and videotaped, then MAYBE the intermediate owner may avoid builder liability to the purchaser. But obviously, this is hardly ever feasible.

If a serious crash occurs, passengers or ground victims will probably sue the intermediate owner anyway. Their success will depend on the facts of the individual case. Another approach to this problem is for the builder to require that the purchaser sign an "Exculpatory Agreement" whereby the new owner expressly agrees to take on all the liability responsibility from the seller.

Exculpatory Agreements

Most courts do not allow a commercial seller of a product to avoid liability for injury or death to a consumer by means of such agreements. Commercial sellers are exposed to strict product liability for defective products and it is against public policy to allow them to disclaim liability. However, it's different with private parties. A number of states allow private parties to use exculpatory agreements but strictly construe their language. Other states, including California, allow the use of such express assumption of risk agreements under the right circumstances. California even has a basic jury instruction which allows the jury to be told that a negligent party can be excused from liability where a victim has expressly has assumed the risk of his own injury. I personally believe that exculpatory agreements or disclaimers are useful because they spell out the individual responsibility people should acknowledge when undertaking risky recreational activities.

Disclaimers and waivers are frequently enforced in economic damage cases, i.e., when they involve breach-of-contract or breach-of-warranty issues. Exculpatory agreements are much more strictly construed when personal injury or death is involved. The following is a partial list of considerations relevant to whether such exculpatory agreements may be upheld by some courts:

• In some states, a private seller may be able to disclaim liability for negligent acts in connection with the sale of an aircraft to a pilot purchaser who is in an equal bargaining position with the seller.  
• A private seller of a kit airplane might be able to disclaim liability for passenger injury resulting from negligence associated with the construction and piloting of a homebuilt aircraft if the exculpatory agreement is carefully drawn and does not violate public policy under a particular state's laws.  
• To be enforceable, exculpatory agreements must be unambiguous and clear as to the risks the signatory is taking. Further, the disclaimer must be written with clear and conspicuous print warning the signatory of the rights that he is giving up.  
• There cannot be any compulsion, pressure, economic leverage or misleading inducement that caused the person to sign the agreement.  
• The person who signs the agreement must be an adult and must be the person against whom the agreement will later be asserted in the event of injury. Most states will not allow a spouse to sign away their husband's or wife's rights to sue for wrongful death.  
• Normally such agreements are only honored in private recreational activities which do not involve public services or public interest.  
• Many courts will not honor these agreements if the negligent actions of a party also constitute violations of law, because while a private party may agree to release you from your own negligence, the courts have an interest in penalizing violations of the law.

Don't Expect "Boilerplate" Disclaimers to Work

It is important to understand that if anyone hopes to successfully use an exculpatory agreement to cut off a serious injury or death claim, it must be carefully drafted by an attorney knowledgeable in this area and should be customized for the particular operation involved. Thus, "cookie cutter" form agreements that one pilot has copied from another pilot, who got it from a friend, after it was prepared by a lawyer for a different circumstance, are not likely to be honored by the courts. Anyone who uses "personal injury and death disclaimer" should anticipate that a plaintiff's attorney will scrutinize the document and the circumstances in which it was used to argue that the victim didn't understand what he was giving up. Trial courts and appellate courts will scrutinize the "disclaimer" before enforcing such agreements because it may mean dismissing somebody's million-dollar wrongful-death suit.

There is no guarantee that an exculpatory agreement would be upheld by any particular court; however, there is in incidental benefit to using such exculpatory agreements between sellers and buyers and between pilot owners and passengers. An attorney who takes on the case of a victim against a homebuilder or a pilot must seriously consider the risk that the exculpatory agreement will be enforced by the court and that the case will be thrown out. Thus, a lack of substantial assets coupled with the existence of a well-written exculpatory agreement may mean the difference between a lawsuit and no lawsuit. Even if the lawsuit is filed, the case may be settled on much more negotiable terms if the defense lawyer has the ability to assert the exculpatory agreement against the plaintiff's claims.

I believe that exculpatory agreements are an ideal tool for the sellers of homebuilt aircraft and for the operators of homebuilt aircraft who carry passengers. Why shouldn't people be able to give up their right to sue if they knowingly and voluntarily assume a recreational risk?

The growth of the homebuilt industry is exciting. Unfortunately, when accidents occur, lawsuits will follow. Careful building procedures and safe operating practices should minimize exposure to lawsuits.

A recurring problem in homebuilt accidents is the fact that the pilot often flies a new-model aircraft with little or no specific training in that particular model. Kit manufacturers should consider offering training to their customers. Smart underwriters require training before providing insurance. Prudent builders who know that their life depends on the quality of their construction should exercise the same amount of prudence on the operational side and obtain familiarization training in their aircraft before flying it solo.

EAA and the FAA provide a wealth of literature for aspiring homebuilder pilots. A mastery of this information and a healthy dose of common sense will prevent the accidents that lead to the lawsuits. Also, it wouldn't hurt to have a properly drafted exculpatory agreement in the hangar, just in case.

NOTE: The issues discussed in this article do not constitute legal advice. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.

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About experimental / amateur-built aircraft.

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Amateur-built aircraft are built by individuals and licensed by the Federal Aviation Administration (FAA) as “Experimental.”  The Experimental designation has been in existence for more than five decades.  It defines aircraft that are used for non-commercial, recreational purposes such as education or personal use.

Under FAA regulations, if an individual builds at least 51 percent of an aircraft, the aircraft is eligible to be registered in the amateur-built category.  They are available in kits (where some of the airplane is already fabricated), or plans (where the builder purchases or manufactures all the parts and assembles them).  These airplanes are also commonly known as “homebuilts,” for the obvious reason that many individuals construct these aircraft at home, often in their garages. 

Currently, more than 33,000 amateur-built/homebuilt aircraft are licensed by FAA. They represent proven aircraft designs that have been flown safely for many years.

Who constructs amateur-built/homebuilt aircraft?

People from all walks of life, including astronauts, airline pilots, military jet pilots, machinists, welders, professional people and others.

Why do they build them?

A variety of reasons:  a personal challenge, education, performance, or to invest “sweat equity” into the cost of an airplane. 

Costs range from under $10,000 to more than $100,000 based on desired performance characteristics and optional engine and avionics packages. By comparison, a new factory-built Cessna 172 costs more than $250,000. 

Many amateur-built/homebuilt aircraft utilize composite materials that help create airplanes that are lighter, faster and more fuel efficient than similar production aircraft.

How long does it take?

An average amateur-built/homebuilt aircraft will take between 1,000 and 3,000 hours to complete.  Some individuals build their airplane in less than a year; others may take a decade or more.

How are these aircraft regulated?

All amateur-built/homebuilt airplanes must be registered with the Federal Aviation Administration (FAA). These airplanes must be inspected by an FAA inspector or a designated inspector before an airworthiness certificate can be issued. 

This is a fairly rigorous process. The builder(s) must provide logs of when, where and how construction took place, along with supporting documents and photographs. If the aircraft passes this inspection, a pilot must fly between 25-40 hours of test flights in specific non-populated areas to make sure all components are operating properly. Only after that test time is flown may passengers be flown in the aircraft.

In addition, an amateur-built airplane is subject to condition inspections every 12 months, the same scrutiny required of small production aircraft.

Does a person have to be a licensed pilot to fly these airplanes?

Yes. Pilots of amateur-built/homebuilt aircraft must earn and maintain the same federal pilot training and ratings as those who fly factory-built aircraft such as Cessnas, Pipers, and Beechcrafts. They also must follow all appropriate federal regulations during each of their flights.

What does the term “Experimental” mean regarding a homebuilt airplane?

The term “Experimental” is actually a bit of a misnomer; it refers to the FAA category in which the airplane is registered, not the exclusivity or the use of the airplane. 

While there are a handful of homebuilt aircraft that are original designs, the vast majority of homebuilt airplanes are built using standardized, tried- and-true kits or plans that have been successfully constructed thousands of times. 

When the current homebuilt aircraft rules were first introduced in the early 1950s, there was difficulty finding a category where the finished aircraft could be registered. After all, the airplanes were not factory-built, such as Cessnas or Pipers, nor were they transport aircraft (airliners) or military aircraft. Federal officials saw the most practical category as Experimental, and created a new subcategory called “amateur-built.” 

FAA’s Experimental category also includes nearly 10 other subcategories, including aircraft used for crew training, air racing, and historic aircraft (such as World War II military aircraft) flown to air shows and exhibitions.

How safe are amateur-built/homebuilt aircraft?

Studies by FAA and the National Transportation Safety Board (NTSB) show that amateur-built/homebuilt aircraft have an accident rate less than one percentage point higher than the general aviation fleet.  In fact, the accident rate for amateur-built/homebuilt aircraft is dropping.  The total number of registered homebuilt aircraft has doubled since 1994, and the total hours flown have increased by 123 percent, while the total number of accidents has stayed virtually the same. 

Another good barometer of safety is insurance rates. Companies that insure both homebuilts and production aircraft charge about the same rates for owners of either type of airplane. That indicates a similar level of risk.

Are these aircraft the same as ultralights?

No. Ultralights are light, one-person flying machines that operate under a completely different set of federal regulations. All amateur-built/homebuilt aircraft are registered with the federal government in the same manner as production aircraft with corresponding “N-numbers” on the fuselage.

What does EAA do to support the amateur-built/homebuilt program?

EAA was founded in 1953 with a focus on amateur-built/homebuilt aircraft activities.  Since that time, the interests of EAA members have grown to include virtually all of aviation’s broad and dynamic spectrum.  The core of EAA activities continues to revolve around amateur-built/homebuilt activities. 

For more than 60 years, EAA has been educating builders and pilots so they may enhance the safety of their aircraft and their individual flying abilities. For instance, EAA technical counselors, who are experienced airplane builders, restorers and mechanics, volunteer their time to visit builders and review their projects.  EAA flight advisors help pilots evaluate their flying skills so they are well suited to flying this particular type of aircraft. In some cases, the evaluation will point toward more flight training before a pilot flies a newly built or restored airplane. 

EAA also offers a full range of instructional books and educational videotapes, as well as a full-time staff that provides information on specific aircraft so people can embark on a project suited to their individual needs and abilities.

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F.A.A. Refers More Unruly Passenger Cases to Justice Department

A surge in disruptive passenger behavior since the beginning of the pandemic has put pressure on the Federal Aviation Administration.

By Mark Walker

Reporting from Washington

The Federal Aviation Administration said on Wednesday that it had asked the Justice Department to consider bringing criminal charges in 43 serious and dangerous incidents from the past year involving unruly passengers aboard planes.

Since late 2021, the F.A.A. has referred 310 cases to the Federal Bureau of Investigation, following a commitment between the two agencies to collaborate more closely on the criminal prosecution of unruly airline passengers when warranted.

As of Aug. 18, airlines reported 1,375 incidents of unruly passengers to the F.A.A. In the past year, the agency has forwarded 43 cases to the F.B.I. for potential criminal charges. These incidents include attacks on crew members, sexual assaults on passengers and attempts to breach the cockpit.

“There’s absolutely no excuse for unruly behavior,” Michael Whitaker, the F.A.A.’s administrator, said in a statement. “It threatens the safety of everyone on board, and we have zero tolerance for it.”

Unruly passenger behavior surged during the pandemic, prompting the F.A.A. in 2021 to implement a zero-tolerance policy for such conduct and begin issuing fines instead of warning letters to offenders. The agency reported approximately 6,000 such incidents in 2021, a sharp rise compared with about 1,000 reports in 2020. The number of incidents reported in 2023 fell to 2,100 but still represented an uptick from the years preceding the pandemic.

The F.A.A. lacks criminal enforcement authority and can only impose fines for unruly and violent behavior, with penalties up to $37,000 per violation. More serious cases that the agency believes warrant criminal prosecution must be referred to the F.B.I. Typically, the aviation agency only refers the most egregious cases.

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