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#1
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AIM is pseudo-regulatory
In another thread ("Radio Procedure - Runway ID," which is now pretty
much a stale thread), some of us debated whether the AIM is regulatory. I indicated that an article appearing in IFR magazine in the early 90s that was authored by an attorney indicated that the AIM has become pseudo-regulatory. One of this newsgroup's more vocal (and sometimes controversial) contributors asked for case citations in response to a contribution by someone else. The following cases appear to indicate that violating the AIM is sufficient to establish that the pilot breached his duty of reasonable care, and thus operated his airplane negligently: Management Activities, Inc. v. United States, 21 F.Supp.2d at 1175; Dyer v. United States, 832 F.2d 1062, 1069 (9th Cir.1987); First of America Bank-Cent v. United States, 639 F.Supp. at 453; Associated Aviation Underwriters v. United States, 462 F.Supp. 674; and Thinguldstad v. United States, 343 F.Supp. 551, 552-53 (S.D.Ohio 1972). Like most older court cases, they are not easily available online, at least for free. You can find them on www.westlaw.com, www.lexisnexis.com for a fee, or perhaps at your nearest publicly accessible law library. You could also request your attorney to provide a copy. |
#2
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AIM is pseudo-regulatory
This is AOPA counsel John Yodice's take on the subject:
http://www.aopa.org/members/ftmag/ar...m?article=4421 Better treat it as regulatory. Bob Gardner "rps" wrote in message oups.com... In another thread ("Radio Procedure - Runway ID," which is now pretty much a stale thread), some of us debated whether the AIM is regulatory. I indicated that an article appearing in IFR magazine in the early 90s that was authored by an attorney indicated that the AIM has become pseudo-regulatory. One of this newsgroup's more vocal (and sometimes controversial) contributors asked for case citations in response to a contribution by someone else. The following cases appear to indicate that violating the AIM is sufficient to establish that the pilot breached his duty of reasonable care, and thus operated his airplane negligently: Management Activities, Inc. v. United States, 21 F.Supp.2d at 1175; Dyer v. United States, 832 F.2d 1062, 1069 (9th Cir.1987); First of America Bank-Cent v. United States, 639 F.Supp. at 453; Associated Aviation Underwriters v. United States, 462 F.Supp. 674; and Thinguldstad v. United States, 343 F.Supp. 551, 552-53 (S.D.Ohio 1972). Like most older court cases, they are not easily available online, at least for free. You can find them on www.westlaw.com, www.lexisnexis.com for a fee, or perhaps at your nearest publicly accessible law library. You could also request your attorney to provide a copy. |
#3
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AIM is pseudo-regulatory
rps,
You can search the cases on the NTSB's website. It is the NTSB that interprets the FARs. The bottom line is that the AIM is looked at by the NTSB as extremely strong evidence when looking at the question of whether a pilot operation was "careless and/or reckless" and operating contrary to the AIM has become the basis for sanction. While the world isn't black and white, the shade of gray of the AIM is dark enough that it's wise to treat it as regulatory. All the best, Rick |
#4
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AIM is pseudo-regulatory
Thanks, but the cases I cite are federal court cases (most are at the
district level, and at least one was at the circuit appellate level). Either party (FAA or pilot) can appeal an NTSB decision to the court system. I don't believe the NTSB publishes courts' decisions, though I may be wrong. Further, I believe the FAA interprets the FARs and the NTSB merely affirms or reverses the interpretation. If you read the AOPA article Bob Gardner pointed to in an earlier post in this thread, you will learn that a federal court decided that the FAA's interpretation of a FAR is to be given broad discretion by the NTSB. I agree that the AIM is to be treated with almost as much authority as the FARs - other posters to another thread had an opposing viewpoint. |
#5
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AIM is pseudo-regulatory
"Bob Gardner" wrote in message
. .. This is AOPA counsel John Yodice's take on the subject: (The article is by Kathy Yodice, not John Yodice). http://www.aopa.org/members/ftmag/ar...m?article=4421 Better treat it as regulatory. Hm, that's a peculiar article. It begins by asking if the AIM is regulatory and it concludes, "Those cases suggest that you may be held responsible for complying with FAA guidance". But of the only two cases mentioned, neither description supports that conclusion. In the first case mentioned, an unnamed pilot in an unspecified case "attempted to justify" a decision by citing the AIM--but there is no mention of whether the "attempt" succeeded. And the second case mentioned makes no reference at all to the AIM or any other FAA publication. --Gary |
#6
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AIM is pseudo-regulatory
rps,
I understand you were citing federal court cases (appeals from the NTSB go to the federal appellate courts, not district [trial] courts and it is extremely rare for someone to appeal a matter from the full NTSB to the federal courts because the FAA almost invariably has won). I was referring to administrative actions by the FAA against pilots for violations of the FARs. Those actions are heard by law judges employed by the NTSB. The NTSB's responsibility, by statute, is to interpret the FARs. However, if the FAA has published its own interpretation of an FAR the NTSB is to give great weight to that interpretation unless it is clearly unreasonable. In administrative actions against pilots, the NTSB has used the AIM to determine what is careless and reckless, which matches the title of this thread, making the AIM very close to regulatory. You cited civil actions, which vary a bit from the title of this thread. None of them were actions by the FAA against a pilot accusing him or her of violation of a regulation; they were actions involving civil suits and the question of negligence of a pilot or air traffic controller. There the issue is whether an action taken or not taken constituted negligence. Whether the action or inaction was a violation of an FAR is only evidence of negligence (not conclusive) and operating contrary to the AIM has been used as evidence of negligence. In those actions whether the AIM is regulatory is not an issue, a pilot's certificate was not at stake. A pilot who choses to operate in a manner contrary to the recommendations of the AIM faces two separate issues: First, can the FAA use the operation as the grounds for a certificate action? and second, if there is an accident and the pilot is sued for negligent operation of the aircraft, is the operation contrary to the AIM recommendations and therefore evidence of negligence? One issue is an issue of compliance with the regulations when it comes to a violation of the FARs and a certificate suspension or revocation and the other is an issue of potential civil liability should there be an accident. Sorry for the long answer, but there are two distinct considerations. All the best, Rick |
#7
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AIM is pseudo-regulatory
"Gary Drescher" wrote:
http://www.aopa.org/members/ftmag/ar...m?article=4421 Better treat it as regulatory. Hm, that's a peculiar article. Not peculiar, but basic adminsistrative law. The article is referring to the recent Merrill csae, where a Court of Appeals concluded that an agency (such as FAA) may interpret its own rules as it wishes, under a principle called "due deference." This is found throughout federal litigation. Agency publications (like the AIM) may thus be cited in support of a FAR violation. "Regulatory" is thus misleading in this regard. In all enforcement cases, you have to violate a Reg. Much of the AIM does not involve FAR mattters at all, except portions of it fall under the general context of 91.13 (reckless operation) for failing to heed. Similar also as to operating under IFR. Courts at times cite Black's Law Dictionary or Webster's Dictionary in support of a finding. Nobody would call those regulatory. Fred F. |
#8
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AIM is pseudo-regulatory
"TaxSrv" wrote in message
... Not peculiar, but basic adminsistrative law. The article is referring to the recent Merrill csae, where a Court of Appeals concluded that an agency (such as FAA) may interpret its own rules as it wishes, under a principle called "due deference." This is found throughout federal litigation. Agency publications (like the AIM) may thus be cited in support of a FAR violation. It's the "thus" that I'm not following. The AIM purports to recommend best practices; it does not, in general, purport to put forth interpretations of the FARs (though it does occasionally make reference to particular FARs). So deference to the FAA's reasonable interpretation of the FARs doesn't immediately imply deference to the AIM's recommendations, as far as I can tell. --Gary |
#9
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AIM is pseudo-regulatory
On Wed, 26 Oct 2005 09:40:55 -0400, T o d d P a t t i s t
wrote in :: I don't believe the AIM, by itself, imposes an enforceable legal duty. The legal duty comes from a regulation, a statute, the common law, etc., not from the AIM itself. In that sense, I agree with Steven. However, I do believe it has a legal persuasive effect when analyzing whether the pilot met his obligations to act in accordance with his duty imposed by regulations, etc. The Airman's Information Manual is largely a distillation of information integrating Federal Aviation Regulation Parts 65, 91, Etc. and FAA Orders (some of which airman are not specifically _required_ to study) such as FAAO 7110.65, as well as Advisory Circular content. The AIM provides airmen with a concise source of information as to how to operate within the structure of the NAS in compliance with those regulations and orders. Because the AIM is based on FAA Regulations, Orders and Advisory Circular data, the material it presents is based on authoritative regulatory mandate, IMO. So while the AIM does not itself specifically carry the weight of law or authoritative regulation*, its content is based on such requirements. http://www.faa.gov/ATpubs/AIM/Prefac...ol.html#Policy d. This publication, while not regulatory, provides information which reflects examples of operating techniques and procedures which may be requirements in other federal publications or regulations. It is made available solely to assist pilots in executing their responsibilities required by other publications. |
#10
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AIM is pseudo-regulatory
On Wed, 26 Oct 2005 12:10:40 -0400, T o d d P a t t i s t
wrote in :: Larry Dighera wrote: I don't believe the AIM, by itself, imposes an enforceable legal duty. The Airman's Information Manual is largely a distillation of information integrating Federal Aviation Regulation Parts 65, 91, Etc. Much of it is, and I don't think we really disagree, but there's also lots of helpful advice type stuff. I just grabbed some from the emergency procedures: "After establishing radio contact, comply with advice and instructions received." "After a crash landing, unless you have good reason to believe that you will not be located by search aircraft or ground teams, it is best to remain with your aircraft and prepare means for signaling search aircraft." None of this is really regulatory based. If I'm about to ditch and the ATC guy gives "advice or instructions" about whether to retract the gear, I'm going to ignore him. I know more about the ditching procedures in my aircraft than he does. Similarly, while "stay with the plane" is usually good advice, if you crash in NJ, no one is going to violate you if you decide it's best to walk a mile down the road to the house you saw instead of making a big SOS with rocks in the field. Thanks for the "lots of helpful advice type stuff" quotes. Perhaps that's the source of the confusion about the Aeronautical Information Manual's regulatory nature. Surely the "lots of helpful advice type stuff" isn't regulatory. Is there any evidence of the "lots of helpful advice type stuff" having been used in by the FAA to bolster their Enforcement Action arguments? So while the AIM does not itself specifically carry the weight of law or authoritative regulation*, its content is based on such requirements. Some is, some isn't. Its purpose is not to set mandatory rules - just to give good practices. As you said, we seem to agree on the purpose of the AIM, but I would expect the great majority of the information contained in the AIM paraphrases FARs, FAAO, and ACs. |
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