14-87 AIRWORTHY OR UNAIRWORTHY? The term “airworthiness” or one of its derivatives, is also not defined in 49 U.S.C. or 14 CFR. Nevertheless, a clear understanding of its meaning is an essential tool for the compliance program. Airworthiness is a concept that represents the substance of two of the most fundamental safety regulations, 14 CFR §§ 43.15(a) and 91.7(a).
A. Regulatory Background.
1) Title 14 CFR § 43.15(a) states that each person conducting a 100-hour, annual, or progressive inspection required by 14 CFR part 91 must perform those inspections in such a manner as to determine whether the aircraft meets all applicable airworthiness requirements.
2) Title 14 CFR § 91.7(a) states that no one may operate a civil aircraft unless it is airworthy.
B. NTSB Decisions.The example below clearly expresses the view that an aircraft is airworthy only if it is capable of a safe operation and it conforms to its type certificate.
1) In this case the issue was whether the pilot had violated 14 CFR § 91.7(a) by operating an aircraft that was not in an airworthy condition. The respondent had taxied the aircraft into a mud hole, causing the propeller to strike the ground. As a result one blade was bent and the other was nicked. Upon restarting the engine ran smoothly so that the pilot did not consider the damage to be significant. The pilot decided to give the aircraft a test flight and found that there was no unusual engine vibration or other indication of malfunction. The pilot then operated the aircraft from Nevada to Kansas to New York to Pennsylvania, and to several locations in Florida.
2) Upon hearing the case after a subsequent investigation revealed the damage and the violation, the examiner held that the damage to the propeller caused it to be unairworthy and sustained the Federal Aviation Administration (FAA) allegation that the respondent had violated 14 CFR § 91.7(a). The examiner’s findings were based on the theory that an aircraft is airworthy if it conforms to its type certification but that it is not airworthy if its original design and specifications are altered without FAA approval.
3) The concept of airworthiness expressed in this case must be considered to be the correct one because it is the one which best lends itself to effective enforcement. It is supported clearly by some NTSB precedents and is reinforced by the framework of 49 U.S.C. and the practical operation of the FAA itself. The concept that an aircraft need only be capable of a safe operation to be airworthy cannot be applied effectively because it places too much discretion in the individual pilot or mechanic, safety being a subjective value.
C. Additional Interpretations. A careful study of 49 U.S.C. indicates that the term airworthiness should be interpreted in the manner that it has been in the example above.
1) Title 49 U.S.C., § 603(c) states that the registered owner of any aircraft may file an application for an airworthiness certificate. If the FAA finds that the aircraft conforms to the type certificate for that aircraft and determines, after inspection, that the aircraft is in condition for safe flight, the FAA issues the airworthiness certificate.
2) The statutory language in § 603 clearly establishes that two tests be applied in determining whether the owner of an aircraft should be granted an airworthiness certificate. First, the aircraft must conform to the type certificate for that aircraft. Then, if that condition is met, the aircraft must be inspected to determine that it is in a condition which will permit its safe operation.
3) The very term “airworthiness certificate” implies that an aircraft granted such a certificate is “airworthy.” Therefore, an aircraft denied such a certificate is not airworthy. The plain meaning of § 603(c) indicates that 49 U.S.C. intended that an aircraft should not be considered to merit the issuance of an airworthiness certificate unless it conforms to the type certificate applicable to it. Therefore, it can be argued that 49 U.S.C. established the concept of airworthiness to mean, “… to be in conformance with the applicable type certificate as well as to be in a condition for safe operation …”
4) The practical operation of the FAA should also be considered in determining which concept of airworthiness is most appropriate. If the term airworthy were interpreted to mean only to be in a condition for safe flight, at times it would be unreasonably difficult, if not impossible, to enforce the regulations which turn upon the meaning of that term. In order to prove that a pilot operated an unairworthy aircraft or that a mechanic certified an unairworthy aircraft as airworthy, the FAA sometimes would be required to undertake an extensive test-flight program of an aircraft that did not conform to the applicable type certificate.
5) Moreover, if airworthy meant only to be in a condition for safe flight, it would render the entire airworthiness certification procedure meaningless. Title 49 U.S.C. provides for the issuance of a type certificate—a certificate that includes the type design as dictated by the type certification data in the aircraft’s operating limitations and any other conditions or limitations prescribed in the applicable regulations. Title 49 U.S.C. specifies that the type certificate is to be referred to in determining whether an aircraft should be granted an airworthiness certificate. However, if an aircraft need only be capable of safe flight to be considered airworthy, after the original airworthiness certificate is issued, any mechanic could modify a particular aircraft in any manner that pleased the mechanic and the aircraft would be presumed to be airworthy unless the FAA could prove that the modification was in some way detrimental to the aircraft’s flight characteristics or structural strength.
D Conclusion. To be airworthy an aircraft must conform to its type certificate as well as be in a condition for safe operation. A word of caution is necessary, however, if this concept of airworthiness is to be applied effectively in enforcement cases. Where the evidence clearly demonstrates that the aircraft is not in a condition for safe operation, the NTSB will undoubtedly sustain a finding that the aircraft was unairworthy. However, if the condition of the aircraft is such that it would not be considered to be in conformance with the type certificate, yet it is not clearly unsafe for flight, then the NTSB will probably not sustain a finding that the aircraft is not airworthy in the absence of positive evidence concerning the contents of the type certificate data and the particulars in which the aircraft in question differs from that data.
