Problem 6 Contributed by Brett D. Venhuizen, J.D. Assistant Professor, Department of Aviation University of North Dakota Jim Fisher is a conscientious pilot who is attending a prestigious northern aviation college. Four months ago, Jim, a commercial pilot, rented a C-182 for a flight from Grand Forks to Minneapolis. Today, he and his friend. Bob Willmer, are in your office seeking professional legal advice. In talking to Jim, you have discovered that on the subject flight, Jim and his passenger, Bob, crashed just 2 miles short of their Minneapolis destination. Crystal Airport. Both Jim and Bob were injured in the crash and were transported by ambulance to a local hospital for treatment. The National Transportation Safety Board investigation found no fuel in the C-182 tanks, and no fuel could be drained from the carburetor. Jim states his preflight calculations showed he had enough fuel to make the flight and have enough for the required reserve. The route he selected was via Fargo, Fergus Falls, St. Cloud, then direct Crystal Airport. When questioned further, Jim also related to you that he only checked the weather, including winds aloft, early that morning, for an anticipated 0800 departure. However, because Bob was late, his actual departure was not until 1530 that afternoon. He did not recheck the weather. Unfortunately, it appears that the 10 KT headwinds forecast for his estimated 0800 departure were 35 KTS at the time of his actual departure. Jim also states that during the flight he had to deviate around some cumulus buildups enroute, which he admits added to his flight time. He believes he had sufficient fuel to make Minneapolis. Further, because of the ideal weather, Jim did not feel it necessary to file a flight plan or contact Flight Service enroute. Jim admitted to you that he noticed his fuel gauges getting precariously near empty toward the end of the flight. However, because he visually checked the fuel during preflight, plus his preflight planning, he felt certain that the gauges were inaccurate. To add to Jim's problems, it turns out that Bob Willmer was a suspected drug dealer who was being watched closely by the police. Jim knew nothing of this aspect of Bob's life. Learning of the accident, the Grand Forks police immediately notified the Minneapolis police and asked them to check the aircraft. The police eventually located the aircraft in a Minneapolis salvage yard and while checking the aircraft as requested, they noticed a suitcase in the cargo compartment. Presuming the suitcase abandoned, they removed it and took it to police headquarters. In their office they found a baggage tag on the suitcase handle acknowledging it belonged to Bob. Without asking Bob, who was still in the hospital, the police opened the suitcase and inside found a closed shaving kit. The existence of a shaving kit was very suspicious, as the flight was not expected to stay overnight. The police immediately opened the shaving kit which contained a closed metal box with nearly 3 ounces of a white powder that they suspected was cocaine. Subsequent tests proved them correct. Bob was placed under arrest at the hospital. The FAA inspector does not agree that Jim's preflight planning was sufficient. Further, the inspector alleges that Jim was careless to continue his flight to the Crystal Airport when he saw the fuel gauges approaching empty. Lastly, the FAA Inspector also alleges that Jim violated the Federal Aviation Regulations (FAR) by operating a civil aircraft that was carrying narcotic drugs. Jim has received a Letter of Investigation (LOI) from the inspector alleging these violations and inviting his comments. At the urging of another aviator at school, Jim filed a NASA Form" upon leaving the hospital, which was seven days after the accident. However, the identity strip showed that NASA did not receive the form until 11 days after the accident. If this was not enough, as part of the accident investigation, the FAA inspected Jim's pilot logbook. The logbook revealed that 7 months ago, Jim and Bob had made the same flight to Minneapolis. On that flight, Bob had paid for half of the fuel and rental cost of the aircraft. Bob went there to attend a business meeting, and Jim went to visit his Aunt. The FAA has recently sent Jim a second LOI alleging an illegal Part 135 operation on that flight. Jim and Bob are seeking your legal advice because they know of your firm's reputation in both the criminal and aviation law arenas. They would like you to prepare a brief that addresses the following issues: 1. Regarding preflight planning, what do the FARs require of the PIC? Was Jim's preflight planning sufficient enough to comply with the requirements of the FARs to avoid a violation? Why or why not? 2. Do you believe Jim could be found to have operated the C-182 in a careless or reckless manner when he ignored the low fuel gauge indications and continued his flight to Crystal Airport? Why or why not? Does the existence of many airports along his flight path influence your opinion? How? 3. What action is the FAA likely to take with regard to the violations contained in the first LOI? What do you believe the outcome will be on each of the alleged violations (i.e. inadequate preflight planning, careless or reckless operation, and operating aircraft carrying illegal drugs)? 4. Was the search of Bob's suitcase and its contents legal? Why or why not? 5. Should Jim be concerned with the alleged illegal 135 operation contained in the second LOI? Why or why not? Can you think of any defenses to this charge? 6. Will the NASA form Jim filed provide him any protection? Explain how the NASA Form program works, and the protection, if any, it may provide Jim