March 2020 Aviation Articles

When Is An Arbitration Clause In An Aircraft Purchase Agreement Enforceable?

As with many legal questions, the lawyerly answer is "it depends."  However, generally speaking, yes, arbitration clauses in aircraft purchase agreements are enforceable.  Here's why.

Courts favor arbitration.  Whether a claim is subject to arbitration will depend on the contractual language in the purchase agreement.  A court will presume a claim is subject to arbitration if an aircraft purchase agreement has an arbitration clause and an interpretation of the clause covers the claim. But that presumption may be rebutted.

When Does This Issue Come Up?

If a party to an agreement containing an arbitration clause is sued in court by the other party, the party being sued may ask the court to force the other party to submit its claims to arbitration. The court must then determine (1) whether an agreement to arbitrate was entered into and (2) whether the dispute falls within the scope of the arbitration provision.

Did The Parties Agree To Arbitrate?

Typically, a court will find that the parties agreed to arbitrate if the aircraft purchase agreement contains an arbitration clause or provision.  However, this may not be the case if the arbitration provision itself was fraudulently induced, which will be addressed in more detail below.

What Issues Did The Parties Agree To Arbitrate?

Assuming the first factor has been satisfied, the court will look at the language of the parties' agreement to determine what issues they intended to arbitrate. The language must either specifically state the issues subject to arbitration, or it must be sufficiently broad to cover the claims alleged.  If the court determines that it is "reasonably debatable" whether a dispute is subject to arbitration, it will require that the dispute be arbitrated.

Examples Of Arbitration Language.

An arbitration clause in an aircraft purchase agreement that states

“any controversy or claim arising out of or relating to this agreement, or the alleged breach thereof”

will likely be considered broad enough to encompass most claims relating to the agreement.  In that instance, a general attack on the purchase agreement alleging that it is void because it was fraudulently induced or the result of mutual mistake would still be subject to arbitration.

Conversely, an arbitration clause stating that it covers

“any claim arising out of or relating to the physical condition of the aircraft”

will only include claims with respect to the condition of the aircraft but not issues of whether the parties actually agreed to arbitrate.  Without some evidence of the parties' intent to arbitrate them, claims of fraud in the inducement of the agreement to arbitrate, rather than claims of fraud with respect to the aircraft purchase agreement as a whole or the condition of the aircraft, would be decided by the court rather than an arbitrator.

To put it another way, the court will not consider claims of fraud in the inducement of the aircraft purchase agreement generally.  Those claims will have to be arbitrated.  Only where the claim of fraud in the inducement goes specifically to the arbitration provision itself will the claim be decided by the court rather than the arbitrator.

Conclusion

If you have an arbitration clause in your aircraft purchase agreement, you will need to carefully review the language and compare it to the claims at issue.  Broad language means all claims will likely have to be arbitrated, including claims that the agreement to arbitrate was fraudulently induced.  Anything less than that broad language and claims may or may not be subject to arbitration.

3 Ways to Counteract Your Fear of Stalls

We've all likely been there before. You're working on stalls with either an instructor as a student, testing out a new plane's stall characteristics, or maybe you are the instructor. You set up for it and work to initiate the buffet and look down to realize you have a death grip on the controls and are HIGHLY uncomfortable. 

Have no fear, you are definitely not the first nor will you be the last pilot to go through this. 

Critical AOA by AOPA
  1. The first step to counteract this fear is go up with someone you trust/is trustworthy. Go up with someone who feels comfortable with these like another instructor or a test pilot. In fact, I struggled with this during CFI training (the thought of letting another student do these) so I went up with my instructor who also flies aerobatics. He was able to show me how hard it can actually be to put a Cessna in a spin and taught me how to do a falling leaf stall which helped TONS. BoldMethod.com describes this stall in good detail of what that is and how to execute it. Like I said, go up with someone who can help with this and fly them MULTIPLE times. Ensure you get to a point where it is consistently JUST you at the controls without them having to do anything. 
    Gleim Fear of Stalls
  2. Stay relaxed and don't panic. As you're setting up for it look down and make sure you have a loose grip on the controls and ensure your breathing is controlled. If you start off in panic mode how can you overcome your fear? Know that you are in control the whole time, not the plane. 
  3. Something that helped me overcome my fear as well is watching the instruments. I kept my eyes 75% inside and 25% outside. The reason I did this is to ensure I was coordinated by watching the turn coordinator, wings level until there was a need to initiate a turn, and at a good pitch up (especially on a power-on stall) to bring on the buffet (by good pitch up this means something aggressive enough yet not overly aggressive). What makes most people nervous is looking outside and seeing the nose above the horizon (aka not straight and level), so keep your eyes moving from the instruments back to outside. 

The best tip overall though is the good old "practice makes perfect." So back to the first point, go practice them multiple times until you feel comfortable. Stalls are NOT a natural maneuver so it's normal to not like them. They can be dangerous if not executed correctly though so just ensure to always take safe measures before going up.

Have any tips to add? Comment below!

In the meantime, our scholarship window is back open for the 2020 year! Need some help paying for flight training? Check out https://www.globalair.com/scholarships/ and apply! 

Happy Landings,

-Addi

ADS-B Compliance: The Potential Consequences Of Violating Rule Airspace

As most aircraft operators know, or should know, aircraft must now be equipped with ADS-B Out in order to fly in most airspace within the U.S.  Although it is possible to take advantage of limited waivers or exceptions, generally speaking ADS-B Out is required for operations in "Rule Airspace."

In connection with this requirement, the FAA recently updated Order 2150.3C - FAA's Compliance and Enforcement Program to explain potential sanctions for aircraft operations that do not comply with the ADS-B Out mandate.  Specifically, Chapter 9 of the Order now identifies the FAA's sanction policy/guidance for ADS-B related violations.

It is important to understand that the FAA will be taking these violations seriously. For example, if the FAA believes an airman is transmitting inaccurate ADS-B Out or transponder information with the intent to deceive, or is operating an aircraft without an activated transponder or ADS-B Out transmission (except as provided in 14 C.F.R. §91.225(f)) for purposes of evading detection, it will revoke that airman's certificates.

The sanction for other violations are not as severe, but are nonetheless significant.  The FAA characterizes the severity of the violation based upon levels of 1, 2 or 3, with Severity Level 3 being the most serious. And depending upon whether the FAA views the violation as careless or reckless/intentional, the sanction range could vary from low to maximum.

The FAA evaluates violations based upon impact on safety.  "Technical Noncompliance" involves violations where serious injury, death, or severe damage could not realistically occur as a result of the violation conduct, even if theoretically possible. A violation with a "Potential Effect on Safety"  occurs in a situation where serious injury, death, or severe damage could realistically result, but under the facts and circumstances would not often occur. Finally, a violation falls into the "Likely Effect on Safety" category where serious injury, death, or severe damage may occur more often as a result of the violation conduct.

When the operator fails to comply with ADS-B Out performance or broadcast requirements due to technical noncompliance, the violation is considered Severity Level 1. If the failure to comply with ADS-B Out performance or broadcast requirements has a possible effect on safety then the violation is Severity Level 2. And, not surprisingly, when the failure to comply with ADS-B Out performance or broadcast requirements has a likely effect on safety then it is a Severity Level 3 violation.

The specific sanction will also depend upon the type of violator.  If the violation is by an individual certificate holder, the airman will likely be facing suspension of his or her certificates.  An individual acting as an airman or a business entity will face a monetary civil penalty. In the case of a business, the amount will vary depending upon the size and revenue of the entity.

So, depending upon the circumstances, an individual certificate holder could face a suspension of his or her certificates for 20 -60 days, 60 -120 days, 90 -150 days, or 150 -270 days, depending upon whether the violation is in the low, medium, high, or maximum range, respectively. Other individuals and businesses could face civil penalties ranging from $100 to $34,174 per violation, depending upon the nature of the violator and how the FAA categorizes the violation.

In the event of multiple violations arising from the same act or omission, the FAA may give special consideration if the violation was careless, as opposed to reckless/intentional violations which receive no special consideration.  For an individual certificate holder the suspension could be anywhere from 30 -90 days, 90 -150 days, or 120 -180 days, depending upon whether the violation is Severity Level 1, 2 or 3, respectively. And an individual acting as an airman could be assessed a civil penalty in the amount of $5,000 -$10,000, $7,500 -$15,000, or $10,000 -$20,000, again depending upon whether the violation is Severity Level 1, 2, or 3, respectively.

For other individuals, the civil penalty could range anywhere from $50,000 to $200,000.  And business violators could be assessed civil penalties ranging from $50,000 to $600,000 depending upon the nature and size of the business, as well as the Severity Level of the violation.

Conclusion

Order 2150.3C provides the FAA inspectors and attorneys with a checklist for determining sanction in any given case involving an ADS-B violation.  Unfortunately, when a case gets to the point where the FAA is determining sanction, the actual calculations and method for arriving at the final assessed civil penalty is usually withheld.

However, it is important to understand that the facts and circumstances involved in any given case have an impact on both how the sanction is calculated as well as the amount of the civil penalty assessed.  If you find yourself defending against an alleged violation of Rule Airspace, knowing this information can help you defend yourself and, hopefully, successfully resolve the matter.

Counteracting a Bad Landing

How to counteract and prevent a rough landing:

Go around. That's it. That's the whole post.

Just kidding! Somewhat....

Okay we've all had those days where we landed the plane so rough that we just taxied back in silence and thoroughly inspected the landing gear afterwards. In fact, my student and I had one yesterday so bad that we ended up popping the left main gear tire. It happens! You live and you learn. So let's talk about it.

First things first: set up for a good approach by having a good traffic pattern. Get your 'before landing' checklist done BEFORE getting established in the pattern. That's part of staying ahead of the plane. The less you're having to rush and scramble to make sure everything is complete, the better your odds are of being ready and stable.

Bad Landings

                                       KEFD 2/28/2020

In the picture above we're getting ready to land on 35L at Ellington, so we're entering at a 45 degree right downwind. By this point, all the 'before landing' items were done and our passenger briefing was complete so we could focus on the actual landing.

The second thing is to fly the actual traffic pattern. By this I mean take it back to your rectangular course maneuver: if there are winds, then establish the proper crabbing correction to actually hold your downwind, base, etc. If you're fighting winds the whole time and getting too close or too far from the runway, then by the time you turn final, you won't be lined up with centerline. 

Now, when you actually turn final, work to maintain centerline the WHOLE TIME (not just as you're coming into flare) and fight for the right glide slope. What if you're too high? Don't accept it and chop some power out. If you're too low, add power in. If there is a PAPI or VASI lighting system then make yourself hold the red and white colors. The main thing about being on final is not to accept anything that isn't "perfect" and fight to get the airplane where you want it to be. 

You keep descending on final and now it's getting time to flare: the key part. Don't start the flare too low and especially not too early because you have the danger of stalling too high. Know your plane and know when to flare it. Obviously, something like a C-130 won't flare at the same time as a C172. For the sake of this post and discussing flight training, we'll pretend we're flying a typical GA plane like the C172.

Don't flare until you're about 10 feet about the runway. This is when you transition your eyes from your landing point to the end of the runway and start working the nose up and power out. Remember, the goal is to have the nose wheel touchdown as late as possible. I've found the most common mistakes are that people don't pull the yoke/stick back far enough and the nose wheel hits first, and they jerk the controls rather than smoothly pull it back. Part of a smooth landing is always being smooth with your controls. SMOOTHLY work that nose up and keep pulling until the plane touches down. For the most part, your yoke/stick should be pulled almost all the way back. After the side wheels touch down, just hold the controls and easily start relaxing them to let the nose wheel come down on its own. 

Let's say you do this and still balloon or bounce. What do you do?

That's easy: GO AROUND. Every single time you should execute a go-around because you don't know how hard your second touchdown will be. 

Stepping away from my CFI role and preaching about go-arounds, we all know we'll have those days where we still try and stick with the landing. If it's a small and very minor balloon, hold the controls where they are and then as the plane comes back down go back to pulling back SMOOTHLY again and you should have a nice touchdown (again this is for a balloon that's small and under about 8 feet). 

If you bounce 9/10 times, it's because you hit all 3 wheels at once rather than the nose wheel last so keep pulling back until your nose is up more. Again, this is only for a minor bounce under a few feet. If the plane bounces back up really high, throw in the power and GO AROUND. 

I can't preach go-arounds enough. They not only give you another chance at trying to grease the landing, but they can also save the plane from being damaged. 

The last and most important thing aside from pitch attitude in the flare is airspeed. Watch your airspeed and know your Vref. Let's say Vref is 70kts and you look down, having not even flared yet you're at 60kts. You know what will happen? An early stall and a rough touchdown. Now, let's say the airspeed is at 80kts rather than 70kts. This time you'll float and have the danger of running out of runway before being able to touchdown and bring the plane to a stop. 

Landing is a game of airspeed and altitude. Once you get these down, then get the pitch attitude where it needs to be in the flare. Whenever you get a really smooth and soft landing, look up and take a mental picture of where your nose is in relation to the horizon. THAT'S what you want to work for every single time. 

There's a lot to talk about with landings so you can expect more blog posts on them in the future, but I covered all the basic things that'll keep you safe and smooth. 

Have any tips to add? Feel free to contribute below!

Until next time, Happy Landings!

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