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Understanding and Negotiating Aircraft Leases

by Greg Reigel 1. July 2007 00:00
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If you own an aircraft, but are not fully utilizing the aircraft, how can you maximize your investment in the aircraft? What do you do if you cannot afford to own an aircraft, but you still want to fly? The answer to these questions for many people is aircraft leasing. An aircraft lease can allow an aircraft owner to maximize the use of the owner's aircraft and recover some of the owner's expenses. It also provides an opportunity for someone who cannot afford to own an aircraft to fly.

However, leasing an aircraft involves a number of issues between the owner who is leasing the aircraft to another person, the "Lessor", and the person leasing the aircraft from the owner, the "Lessee". A written aircraft lease should be used to address the issues between the Lessor and Lessee so that each party has a clear understanding of what to expect during the relationship. The parties should pay careful attention to some of the following lease provisions:

Lease Term. This provision establishes the duration of the lease. The lease can be for a fixed term (e.g. 6 months or 1 year etc.), on a month-to-month basis or, in some cases, it may be indefinite with the Lessee leasing the aircraft as needed or on a one time only basis.

Knowing the potential duration of your lease becomes especially important in situations where the Lessor does not have an obligation to renew or extend the lease. If the lease does not provide otherwise, a Lessor could have the ability to refuse to renew or extend a lease even after the Lessee makes commitments based upon the Lessee's belief that the Lessee will continue to have access to the aircraft. Although this may seem unfair, the language of the lease will govern the rights between the parties. Thus, understanding this information up front is essential because it will allow the Lessor to assess the Lessor's ability to use the aircraft or lease it to another party and it will allow the Lessee to accurately assess the Lessee's ability to make commitments in reliance upon the Lessee's access to the leased aircraft.

Use of the Aircraft. The use provision details the types of activities for which the aircraft may be used. Other than the obvious use of flying the aircraft, the lease should establish the types of operations in which the aircraft may be used. The scope of use typically distinguishes between private use (e.g. pursuant to FAR Part 91) and commercial use (e.g. pursuant to FAR Part 135 or other commercial operations such as flight instruction, sightseeing flights, powerline patrol etc.). The terms of the lease should specifically identify permitted uses and any prohibited uses. If the Lessee wants to lease the aircraft for commercial operations, as opposed to private operations, this use will have a direct impact on the maintenance and insurance for the aircraft. The Lessor may or may not want the aircraft for such operations and, if the commercial operations are permitted, the Lessor will likely want to assess the increased costs directly to the Lessee. Thus, it is imperative that the scope of use be identified so the lease can properly address any issues that arise from the anticipated use.

Additionally, once the lease is executed, if the language of the lease does not allow a desired use, the Lessee's desired use may only be possible by obtaining permission from the Lessor. It is much easier to include the appropriate language in the lease prior to signing, rather than attempting to change the lease or obtain the Lessor's permission after the fact. Thus, to the extent possible, the Lessee will need to have a good idea of how the Lessee intends to use the aircraft both at the beginning and throughout the term of the lease.

Scheduling. The lease should explain the method and timing for scheduling use of the aircraft, whether by the Lessor or the Lessee. Scheduling can be done on a "first-come, first-served" basis or one party may have priority or pre-emptive rights over the other. If one party has pre-emptive rights over the other, how and when can those rights be asserted? The lease should also address scheduling of the aircraft at a time when the aircraft is due for maintenance. Typically, a lease will include language that prohibits any period of maintenance, preventive maintenance or inspection from being delayed or postponed for the purpose of scheduling the aircraft, unless the maintenance or inspection can be safely conducted at a later time in compliance with applicable laws and regulations.

Lease Payments The lease should establish the amount the Lessee will be charged for the use of the aircraft and method of payment. Several common options include charging a flat hourly rate (with or without fuel), a monthly rate for availability of the aircraft with a corresponding hourly rate for actual use, or a lump sum or "block-time" rate for use of the aircraft for a fixed number of hours. Depending upon the situation, the Lessee may also be responsible for maintenance costs or other fixed costs associated with the aircraft (e.g. insurance, hangar rent, software updates etc.). Additionally, most leases will require the Lessee to be responsible for any other costs associated with the Lessee's operations including landing permits and fees, head taxes, departure taxes, immigration, customs, handling, foreign fuel taxes and surcharges, over-flight fees, navigation and airspace fees and similar charges. The lease may provide the Lessor with the ability to raise or decrease the amounts charged to the Lessee. This is especially true if the aircraft is being provided with fuel, or if the Lessor's is charging certain of Lessor's fixed expenses to the Lessee. Both parties should be sure they understand when this can happen and upon what conditions such a change is based. Although the parties may not be able to control whether or not an increase or decrease in the rent is imposed, by understanding the circumstances upon which this change may take place, each party will be able to plan for and possibly forecast this change in rent. This knowledge allows the Lessor to own and the Lessee to operate the aircraft in ways that may limit the effect of an increase, or take advantage of a decrease, depending upon the circumstances.

Operational Control. The lease should identify which party will have operational control, as defined in the FAR Part 1, Definitions. If the lease is for private use or commercial, non-Part 135 use, typically each party will have operational control of the aircraft when it is in that party's possession. Oftentimes in this situation, operational control will revert to the Lessor during the times when the Lessee is not using or possessing the aircraft.

If the lease is for Part 135 commercial use, the lease will have to specify, and the Part 135 certificate holder will have to actually exercise, operational control over the aircraft. This type of leasing arrangement is currently in the FAA's "bulls eye" and both Lessor and Lessee need to understand and carefully comply with the applicable regulatory requirements. An experienced aviation attorney is recommended to make sure the aircraft lease is in compliance and protects both parties.

Indemnification. Most aircraft leases will contain an indemnification provision. Indemnification, in essence, means the party agreeing to indemnify will reimburse the indemnified party for any money the indemnified party is forced to pay as a result of the actions of the party agreeing to indemnify. The Lessee may indemnify the Lessor, the Lessor may indemnify the Lessee or the indemnification may be mutual. The indemnification may also be limited by any applicable insurance coverage.

Limitation of Liability. The Lessor and Lessee may also want to limit the liability between them. Typically, this limitation prevents either party from recovering any amounts from the other party in excess of the liability limits of the aircraft's insurance for anything other than direct damages. Damages that may be limited include amounts for loss of use, loss of revenue, loss of value, diminution in value or costs associated with substitution or replacement aircraft or transportation.

Truth in Leasing. If the aircraft is a "large civil aircraft", as defined in FAR Section 1.1 (12,500 pounds, maximum certificated takeoff weight), the lease will need to include a written truth-in-leasing clause in accordance with FAR Section 91.23. The clause will need to be in bold print and at the end of the lease immediately preceding the space for the parties' signatures. Additionally, a copy of the lease will need to be provided to the local FAA FSDO prior to any operations under the lease, and will also need to be carried in the aircraft during all operations under the lease.

General Provisions. In reviewing the lease, make sure the lease refers to parties consistently. The aircraft should be specifically identified, along with any accessories or other property that may accompany the aircraft in connection with the lease. Names of persons or entities should also be spelled correctly and should refer to the appropriate party throughout the lease. If the Lessee is a business entity, such as a partnership or corporation, the lease will need to refer to that entity as the Lessee and not to an individual. To the extent that an individual is required to sign the lease on behalf of an entity, the parties will want the lease to refer to the individual in his or her capacity as an officer or partner of the particular entity that is a party to the lease. Even if a personal signature is required as an additional Lessee or as a guarantor for the entity, this formality should still be observed, although ultimately it may be immaterial to the individual's personal liability under the lease.

Finally, it is essential that you carefully review all of the provisions of any aircraft lease before you sign. Consultation with an experienced aviation attorney beforehand can help you protect yourself, whether Lessor or Lessee. By taking the time to understand the aircraft lease, both parties can ensure that their expectations are met and their interests protected.

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Greg Reigel

CO2 Emissions and Global Warming

by Jeremy Cox 1. July 2007 00:00
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I am no stranger to controversy and this month I thought that I might possibly get everyone's juices flowing by bringing up the controversial subject of Global Warming. Okay, so you think that I may be going a little soft in the head, or maybe I have lost sight of where my bread and butter comes from and therefore I am going on a perilous course of biting the hand that feeds me, by bringing the issue of climate change to this monthly column. Well I hope that none of my own accusations about my state of mind are true, so why you may ask should we even give any fraction of time and space for the discussion of this issue within this corner of Cyberspace that is Global Air? Let me tell you why I think that this is an extremely important issue of discussion, and why you should have an opinion about global warming:

Aviation is powered by fossil fuel and to my knowledge there is no alternative aviation fuel currently available, or even within our sights of being available to any of us that can be anywhere close to the level of calorific value that modern aero engines, whether piston, or gas turbine need to allow them to function at their required power output levels. The search for an alternative aviation fuel may appear to be necessary based upon economic factors rather than for any need to satisfy the growing 'green' movement. The Worldwide deposits of fossil fuels are diminishing while the prices for these fuels are increasing at what appears to be an alarming rate. If you are a regular reader of this forum, you will recall an article that I wrote back in the late of summer of 2005 regarding fuel pricing where I cited a report published by the French Government titled 'The oil industry 2004.' (You can still read this article here.) As a reminder, this report states that the year: 2013 as "the time of maximum production or 'Peak Oil.'" That would mean that the world's oil consumption would reach its highest point around 97 million barrels per day (mbpd). Certain pundits believe that 'Peak Oil' will actually occur at the end of this decade (2010), while even others believe that it has already occurred. The Organization of the Petroleum Exporting Countries (OPEC); who account for more than 39% of all crude oil production, and whose member countries hold more than 2/3 of the world's oil reserves, recently reported that they had opened their spigot 'wide-open' and that global oil extraction currently amounts to 85 Million Barrels of oil per day. It doesn't take much time after thinking about these figures to realize that fuel is not going to drop in price by very much from this point on. So $7.00 per USG Jet A1 delivered into wing at a New York airport, will probably be considered extremely good value in another decade from now.

I believe that the majority within the aviation industry, most likely believes, like me, that the issue of fossil fuel supply and demand is an issue of far greater importance than that of the theoretical issue of global warming. Unfortunately only time will tell as to which of these issues should have been our focus and priority. However I contest that global warming, CO2 emissions and climate change are issues that must now be placed firmly onto your radar, and made a priority within the aviation industry if only to enable us all to develop a unanimous and socially acceptable strategy of stance on this issue. If we are unable to prevent our industry from being demonized by the rapidly swelling worldwide public and political opinion on this controversial topic, everyone of us aviation types will be viewed as pariahs while our freedom and ability to engage in aviation activities will become increasingly socially unacceptable and therefore curtailed. We cannot continue to bury our heads in the sand by avoiding this topic; instead we must make both the time and effort to form up as an industry with one voice and opinion on this issue, before it is too late.

I don't know what your opinion is on this issue, but hopefully through the function of this site, you will be very vocal through your finger tips, by sharing your opinion with us all, here today. First I must give you my opinion.

There are over six and a half billion people on this planet. Two and one third billion people or thirty six percent of the world's population do not have access to electricity. These people have every right to expect that their lot will be eventually improved by rapid industrialization of their countries' economies, namely African and Asian countries that will ultimately allow these people access to the basic necessity; electricity. Unfortunately there is a massive group of people in the wealthy western world that believe that industrial societies are the destroyers of the world. Currently there is intense political pressure being brought to bear on western governments by people that are anti cars, anti aeroplanes, anti growth, anti globalization, anti capitalism and ultimately anti USA. The interpretation of the results of the ice core surveys that started in Vostock in the Antarctic, have been distorted to prove the argument that increasing levels of CO2 in the atmosphere are the direct cause of rising temperature or global warming. In fact it has been proved by further analysis that the recorded increases in CO2 levels in the atmosphere are a result of the temperature increase, not the other way around. The Human contribution to CO2 production is absolutely negligible when compared to the amounts naturally produced by the world's oceans, volcanoes, animals and rotting vegetation. A point of fact easily forgotten is that during the mid 1970s the world's scientific community was warning us all that we were on the brink of a new ice-age, not global warming as is the current argument. These earlier views were fuelled by the evidence that the global temperatures had been sinking during the post war economic boom between 1940 and 1975. Water vapour is the most virulent greenhouse gas, not CO2. The sun is the cause of global warming, not CO2. However the burning of fossil fuels has been identified by certain scientists, much to the glee of the popular media, as the cause of global warming. Unfortunately none of us in aviation can do our jobs without burning fossil fuels, hence our dilemma with this issue. I strongly believe that we must all band together as a united front, with the solidarity and assistance of our industry associations like NBAA, GAMA, NATA, AOPA, etc. in developing a cogent and intelligent public relations statement to combat the rising tide of public opinion against aviation. If we are to be labelled as one of the largest producers of the greenhouse gas: CO2, we must be able to fight back with our own data and statistics, before it is too late.

What are your thoughts and opinions regarding the issue of CO2 Emissions? Please make them known here. Any input that you care to make will be of great interest to all of the readers here at Globalair.com. So please don't be bashful and go ahead and write your comments and suggestions here. Please don't forget that whatever you write here, can be seen publicly by everyone that visits this page, so please be funny, be inspired, but most importantly of all, please be nice.

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Jeremy Cox

FAA Enforcement Case Update

by Greg Reigel 1. July 2007 00:00
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This month I thought I would provide you with an update regarding some of the recent NTSB cases involving FAA enforcement actions. They are instructive because they not only show you the FAA's and NTSB's positions regarding some of these issues, but they also provide some examples of problem areas a prudent airman should avoid.

NTSB Affirms Rejection Of Airman's Emergency Defense To Airspace Incursion

The Board recently rejected an airman's FAR 91.3 emergency affirmative defense and affirmed a 45-day suspension of an airman's commercial pilot certificate for his violation of FAR 91.129(c)(1) (requiring airman to establish and maintain two-way radio communication with ATC in Class D airspace). In Administrator v. Gibbs, the FAA alleged that the airman flew a helicopter into Class D airspace without first establishing communication with ATC and then failed to maintain two-way communications. At the hearing, the airman asserted that his conduct was unintentional and inadvertent because the weather created an emergency situation that resulted in his disorientation and entry into Class D airspace prior to communicating with ATC. However, the ALJ determined that it was clear the airman entered Class D airspace without establishing or maintaining two-way radio communications, and affirmed the FAA's order of suspension.

On appeal to the Board, the airman argued that his failure to declare an emergency did not diminish the authority vested in an airman under FAR 91.3 and, as a result, the alleged emergency situation, in and of itself, excused the violation. However, the Board disagreed. It initially noted that the airman had the burden of proof with respect to his defense and he needed to establish a causal connection between the emergency situation and the departure from the regulatory requirements of FAR Part 91. The Board also observed that an emergency situation caused by a PIC's own actions does not excuse or justify departure from the regulations and FAR 91.3 does not relieve an airman from the duty to obey the regulations.

The Board then held that the evidence supported the airman's violation of FAR 91.129(c)(1). It also agreed with the ALJ's determination that any emergency that occurred was the result of the airman's own actions and the airman did not take appropriate steps to reduce the risk of an incursion. The Board concluded that the airman had not met his burden of proving that emergency conditions caused his lack of preparedness and awareness.

In this situation, it likely would not have mattered if the airman had declared an emergency. Both the FAA and the Board would still look at the totality of the circumstances to determine whether an emergency existed that was not the result of the airman's conduct. And even if an emergency existed, they would also still analyze the airman's conduct to determine whether it was reasonable under the circumstances. Thus, whether or not the airman declared an emergency, the analysis of the situation would remain the same.

Submission To Request For Re-Examination Precludes Later Objection To Basis For Request

A mechanic recently lost his appeal of an emergency revocation order issued by the FAA after he submitted to, but failed, a re-examination of his qualifications to hold a mechanic certificate. In Adminstrator v. Montenegro, the FAA issued a request for re-examination to the mechanic. The mechanic submitted to the re-examination but failed the re-examination when he only received a score of 40%. The FAA then issued an emergency order revoking the mechanic's certificate. The mechanic appealed the order to the NTSB and the FAA then moved for summary judgment. In response to the FAA's motion, the mechanic challenged the basis for the re-examination request and claimed that his initial testing for his mechanic certificate was adequate and, therefore, he should never have been asked to submit to a reexamination.

In granting the FAA's motion, the ALJ reiterated Board precedent that once an airman has submitted to a reexamination, the only relevant question is whether the airman has successfully demonstrated his competence. Since no dispute existed as to whether the mechanic had failed to successfully demonstrate his competence, the ALJ granted the FAA's motion.

On appeal, the Board observed that the mechanic did not "1) identify any error in the law judge's decisional order; 2) contest the statements made by Inspector Cunningham; 3) argue that any material facts remain in dispute; or 4) argue that revocation is an inappropriate sanction for a failure to successfully demonstrate competence." Likewise, the mechanic was unable to contest that he had failed the re-examination. As a result, the Board affirmed the ALJ's grant of summary judgment and the FAA's emergency revocation order.

Although it is unfortunate that the mechanic did not raise his objections to the re-examination request prior to submitting to the re-exam, as I have discussed in the past, such arguments are most often unsuccessful given the extremely low threshold the FAA must meet to justify a request for re-examination. Rather than spending time challenging a request for re-examination, in most cases it may be more prudent to spend the time, money and energy preparing for the re-examination.

NTSB Rejects Mechanic's Voluntary Disclosure Reporting Program Defense

A mechanic's attempt to avoid enforcement action under the Voluntary Disclosure Reporting Program ("VDRP") was recently rejected by the NTSB in Administrator v. Liotta. In response to the FAA's allegations that the mechanic violated FAR 43.13(a), which the mechanic did not deny, the mechanic argued that his employer's report of the violations pursuant to the VDRP immunized him from enforcement action. After the ALJ issued his decision affirming the FAA's order of suspension, the mechanic appealed to the full Board, repeating his arguments that the FAA should not have pursued enforcement action against him based upon his employer's VDRP report.

In rejecting the mechanic's arguments, the Board first noted that it cannot review the FAA's election to pursue an action against a particular individual, and not against others who may have played a role in the alleged violation. It then observed that the VDRP does not typically apply to individuals, but rather to entities, companies or carriers. However, the VDRP may provide immunity to employees or agents of an employing covered entity: (1) when the violation involves a deficiency of the employer's practices or procedures; (2) when the individual inadvertently violates FAA regulations as a direct result of that deficiency; (3) when the individual or other agent immediately reports the violation to the employer; and (4) when the employer immediately notifies the FAA of the violation. Although the mechanic had the burden to show that all four requirements were met, unfortunately, the mechanic could only show that (4) was met.

The Board also observed that immunity may have been available to the mechanic pursuant to the Aviation Safety Reporting Program ("ASRP"). But, since the mechanic did not file the ASRP form, this immunity was not available to him either. The Board found that the mechanic's FAR violations were not a result, either directly or indirectly, of a deficiency in his employer's maintenance policies, if deficiencies actually existed. It went on to note that, if it were to conclude that the employer had no deficiency at all, the employer could not protect its employees by claiming responsibility for some deficiency in an effort to bring an employee under its VDRP "immunity umbrella."

The moral of the story: File those ASRP forms, often! It is quite possible that a timely ASRP filing could have resulted in waiver of the sanction against the mechanic in this case. However, you can't take advantage of the program if you don't file.


As airmen, we should always be learning. We can learn from current NTSB cases. The obvious lesson is to not do what these airmen did. These cases also reveal what an airman may be able to expect from both the FAA and the NTSB in these situations. Forewarned is forearmed.

Do you have any pro or cons to this article?  If so please click on the link below and tell us why or why not legal representation is a good idea.  Everyone gains knowledge from your input so please lets hear from you!

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Greg Reigel

Lease vs. Loan: the Things You Should Know

by David Wyndham 1. July 2007 00:00
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In simple terms, a loan provides you ownership from the start. You borrow money and provide either the aircraft as collateral, or some other tangible assets such as s stock portfolio.

In a lease, the owner (lessor) allows another the use of an aircraft for a fixed period of time or at will. The lease most of us are familiar with is called an operating lease. An operating lease is a lease whose term is short compared to the useful life of the asset. For example, an aircraft which has an economic life of 30 years or more may be leased to an operator for 5 years on an operating lease.

There are two major differences between a lease and a loan.

With a loan, you assume the full residual value risk of the aircraft. If the value of your aircraft changes, you either benefit or lose. With a lease, the lessor assumes that risk. Owners that tried to sell their aircraft in 2001 - 2003 saw a significant loss in value over what they anticipated. Today, sellers of popular late model turbine aircraft may see some appreciation in value compared to a few years ago.

With a lease, the lessor owns the aircraft and can take advantage of tax depreciation. With a loan, there may be tax advantages if the aircraft is for business use, but personal use and mixed use will severely limit (or eliminate) any tax advantages. If tax depreciation is not needed, a lease may be the way to go

Leasing may be less capital intensive than a loan. Down payments for loans are generally greater than the upfront costs associated with a lease. This may be especially true for new models, but deals can be made.

With a loan, you can sell the aircraft before the loan in finished. There are rarely penalties except that you must pay off any remaining balance. Early exits from a lease can be costly as the contract may require you to pay the remaining lease payments.

Leases have return conditions. When returning an aircraft from a lease, you must return it in some pre-agreed state of condition. You will pay for returning the aircraft in less than contracted condition. Loans may require the aircraft be maintained in an airworthy condition, but as the owner, you assume the risk of the aircraft being worth less than the balance loan amount.

It can be tough find leases for older (20 years +) aircraft. A leasing company needs to ensure a reasonable service life remains on the aircraft. The leasing company also has to plan on being able to sell the aircraft after the lease in a relatively short time. New and late model used aircraft tend to be leased more often than older aircraft.

In general, leases work well for operators who do not need tax advantages, want minimal down payments, and plan on turning their aircraft over for new ones every few years. With leases longer than about seven years, you'll likely pay more than if you had a loan. Lease terms may be more favorable for new aircraft as many manufacturers offer lease (and finance) programs for their new models.

Loans work well if an operator uses the aircraft for business use and can take advantage of the tax depreciation. Loans also work well if the owner plans on keeping the aircraft more than about seven years. Some institutions get creative with long term loans that have balloon payments due at the end making the typical loan payment less than the short term lease payment. Provided the down payment isn't excessive, you may be able to borrow more aircraft than you can lease.

You need to evaluate both options and, if business use is involved, talk with your tax and legal advisors. This article touches on the two options, but "the devil is in the details" - read your contracts carefully.

Lease or loan - what experiences have you had with either or both?

Reliability and Availability

by David Wyndham 1. July 2007 00:00
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The news is full of how well all the aircraft manufacturers are going in new aircraft sales. Also doing quite well are sales of used aircraft. Still the majority of us are not buying right now. For many, your current aircraft is doing just fine, thank you. But is it? Here are two things to track to know how well your aircraft is doing.

Dispatch Reliability is defined as the percentage of departures that leave within a specified period of a scheduled departure time. Is the aircraft ready to fly? Ninety-eight percent dispatch reliability is a standard that many aircraft operators achieve. In order to keep an aircraft reliable, it requires the aircraft to be kept in excellent mechanical condition.

If your aircraft does not make its scheduled departure, what was the reason? Weather, ATC delay, crew delay, maintenance delay?

Weather and ATC are beyond your control. But the other two should be at or very near to zero. If you are frequently running out of crew duty day, do you need to plan your trips better? Even if you are owner-flown, you need to schedule adequate rest. If your aircraft breaks frequently, do you need to replace the aircraft or find another maintenance vendor? Could it be that age has caught up to your aircraft? Even if dispatch reliability is excellent, you may still be loosing out due to availability.

Older aircraft cost more to maintain than newer aircraft. Even if dispatch reliability is high, keeping an older aircraft fit tends to not only require more money, but more time.

Aircraft Availability is defined as a percentage of days an aircraft is available for flight in an operating year. When your aircraft is in for maintenance, it is not available for flight. The more time your aircraft spends in or waiting for maintenance, the less time the aircraft is available to be scheduled for flights.

There are 365 days in a year. You should know the status of the aircraft for each day, regardless of whether it is scheduled for flight. Decreasing availability is typical of older aircraft and along with the increasing maintenance costs, can be a strong indicator of when to replace your aircraft.

If you are a low utilization operator who has flexibility in scheduling trips, then decreasing availability may not be as big an issue for you. You can rearrange travel, or take other means if air travel is an option, not a requirement. However, whether personal or business, not having an aircraft when you want it is an inconvenience. The more you fly the greater availability you need. High utilization operators tend to favor newer aircraft with less onerous maintenance requirements.

Tracking dispatch reliability and availability don't take a lot of time, and you can even build it up from (well kept) historical records. It can be an indicator of issues that may lead to an aircraft replacement.

How many of you track either or both of these? Let me know.


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