SERVED JANUARY 8, 2010 ^ ^ 

RECEIVED 

U.S. DEPARTMENT OF TRANSPORTATION — • w •-. i ^ 

OFFICE OF HEARINGS -^AN 1 I 2(N0 

WASHINGTON, DC HEARING DOCKET 

IN THE MATTER OF 

AIR CHARTER INC., 

Respondent. 

FAA DOCKET NO. CP09SO0008 

(Civil Penalty Proceeding) 

DMS NO. FAA-2009-0100 

- "1 

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION 

I. Nature of the Case. 

In this civil penalty proceeding, the Respondent is charged with three 

violations of the Federal Aviation Regulations (FAR). The primary charge 

leveled by the Complainant, the Federal Aviation Administration, is that the 

Respondent conducted an air ambulance service in violation of its 

Operations Specifications, which did not authorize it to perform this 

service.' Second, the FAA says that when the Respondent, which owns and 

operates a Britten-Norman "Islander" aircraft, installed in that aircraft 

facilities for transporting a stretcher, it installed those facilities backwards 

and with an improper number of safety belts attached to the stretcher. This, 

the FAA charged, amounted to a violation of § 91.13(a) of the FAR, which 

prohibits operation of an aircraft "in a careless or reckless manner so as to 

endanger the life or property of another." The third charge against the 

Respondent alleges that, on the day in question, the aircraft did not have an 

' Section 119.5(g) provides, in pertinent part: "No person may operate as a direct air carrier or as a 

commercial operator without, or in violation of, an appropriate certificate and appropriate Operations 

Specifications." 

^ It is important to note that the Respondent was not charged with violating § 43.13(a) of the FAR, which 

requires that a person performing maintenance or an alteration on an aircraft must use the methods, 

techniques, and practices prescribed in the current manufacturer's manual or the manufacturer's 

instructions, unless that person has secured the FAA's approval for a different installation. 
FAA-approved flight manual aboard in violation of § 121.141(b) of the 

FAR.^ 

The Respondent is an on-demand air carrier, operating under the trade 

name of "Air Flamenco." Its principal place of business is the 

Commonwealth of Puerto Rico. The FAA lodged its charges in a complaint 

filed on May 27, 2009, seeking a civil penalty of $11,000. The Respondent 

denied all of the charges and sought an on-the-record hearing. The case was 

referred to the Department's Office of Hearings, where it was assigned to me 

for the conduct of the hearing and the issuance of an initial decision. A twoday hearing was held in the Federal Building in Hato Rey, Puerto Rico on 

October 23 and 26, 2009. Briefs have been filed, and the case is now ready 

for decision. 

II. Complainant Has Not Sustained Its Burden 

Of Proving that Respondent Performed an 

Illegal Air Ambulance Service. 

The Complainant's evidence consisted entirely of the testimony of 

two Air Safety Investigators, one of whom was not at the scene at the time in 

question. Both of them were permanently assigned to the FAA's Miami 

Flight Standards District Office (FSDO). On June 8, 2008, Investigator 

Eugene Jester was standing on the tarmac at the Isla Grande airport in Puerto 

Rico, when he noticed an aircraft bearing the Respondent's trade name being 

offloaded about 50 to 100 feet from where he was standing. An ambulance 

had pulled up near the aircraft, jmd a stretcher carrying what appeared to be 

an elderly, recumbent woman was being removed through the aircraft's aft 

door. The woman was then transferred to a gumey that had been carried in 

the ambulance. The gumey, with its occupant, was placed into the 

ambulance, which then drove away. Assisting with the transfer were the 

aircraft's pilot, another passenger who had been transported on the aircraft, a 

person who Jester recognized as an airport employee and the driver of the 

ambulance. So far as Jester could tell, the scene did not include any medical 

personnel who had been carried in the aircraft, although the identity of the 

second passenger was unknown to him. 

^ Section 121.141(a) requires each certificate holder to keep "a current approved airplane flight manual for 

each type of airplane that it operates ..." Paiagraph (b) of §121.141 states that a copy of the flight manual 

must be carried "[i]n each airplane required to have an airplane flight manual in paragraph (a) of this 

section." 
From his vantage point. Jester took a series of photographs on the 

various steps in the transfer, starting with the time the stretcher had been 

removed fi-om the aircraft. He testified that he had looked into the interior of 

the aircraft, after the recumbent passenger had been driven away. Inspector* 

Jester also spoke with the pilot, asking to see his load manifest (containing 

his weight-and-balance calculation) and the Flight Manual that had been 

carried on the flight. Except for that brief conversation, it does not appear 

that Jester interviewed anyone else who was on the flight. In particular, he 

did not speak with either of the passengers or with anyone else who was 

involved in the transfer of the elderly patient. 

The flight had originated on Culebra, a small island off the east coast 

of Puerto Rico. Under local law, Culebra is a municipality with its own 

local government. There is a ferry service between the two islands, although 

it is slow and subject to the vagaries of the weather. The municipal 

authorities of Culebra had entered into a contract with the Respondent to 

provide air service between Culebra and the main island for residents of 

Culebra who were considered too fi-ail or elderly to suffer the rigors and 

discomfort of an ocean crossing in order to obtain medical services, e.g.. 

appointments with specialist physicians whose service were not available on 

Culebra. Culebra has a small clinic but lacks many elementary medical 

facilities such as X-ray machines. The contract does not call for the 

Respondent to provide air ambulance services. In case of a genuine medical 

emergency requiring such services, there are other providers (Aeromed, 

Aviane, Critical Care) as well as the U.S. Coast Guard who are available to 

transfer patients to hospitals on the larger island. In addition, the contract, 

which is Exhibit 20 in the record, provides for the Respondent to fiimish air 

transportation to municipal officials of Culebra. The Respondent also 

provides an on-demand service between the two islands for travelers who 

pay their own way. 

At some point, Inspector Jester sought the counsel of Joel Rodas, the 

Principal Maintenance Inspector at the Miami FSDO. Jester showed the 

photographs to Rodas. After viewing the pictures and performing some 

research into the aviation literature pertaining to the Britten-Norman 

"Islander" aircraft. Inspector Rodas concurred in his colleague's view that 

Respondent's aircraft had been used to conduct an illegal air ambulance 

operation. Inspector Rodas was also responsible for the conclusion that the 

flight manual that the pilot had showed to Jester was not the proper manual 
to be carried in the aircraft; although it had been prepared by the British firm 

that built the aircraft, the manual carried by the pilot was not the one that 

was currently approved by the FAA for use in domestic operations. Finally, 

Rodas concluded that the stretcher had been improperly installed and was 

not equipped with the appropriate number of safety belts, a conclusion he 

reached on the basis of viewing the photographs that Jester had taken. Like 

Jester, Rodas did not interview any of the individuals involved in the transfer 

of the patient; nor did he speak with the pilot, the patient or the other 

passenger on the aircraft. 

The Complainant's case was closed after the testimony of the two 

inspectors. 

Respondent's evidence opened with the testimony of Dr. Manangely 

Rodriguez, the physician who had seen the patient that Inspector Jester later 

observed leaving the aircraft on June 8, 2008 at the Isla Grande airfield. Dr. 

Rodriguez is a general practitioner in Culebra. She was on clinic duty that 

Sunday, when an elderly lady was presented to her, suffering from pain in 

her hip after a fall at home. Suspecting a broken hip or broken leg. Dr. 

Rodriguez made arrangements far her patient to be flown to the main island 

for an X-ray. She also made arrangements for the airplane to be met by an 

ambulance to take the patient to the X-ray facility. It was Dr. Rodriguez's 

unequivocal testimony that the condition of her patient did not require 

medical personnel to attend to her during the flight, and the arrangements for 

her transportation did not include the attendance of a medically trained 

person or persons during the flight. Dr. Rodriguez testified that, after the 

flight took place, she learned that the patient had suffered a fi'actured tibia, 

although she did not know that at the time. 

During the hearing, the Respondent also sponsored the testimony of 

Aida Maldonado, the Manager of the Culebra Health Center, where Dr. 

Rodriguez had seen the patient. On the witness stand, Ms. Maldonado 

confirmed a statement she had made earlier and that is in evidence as Exhibit 

21. According to the statement, the patient was stable when she left the 

Health Center and was not accompanied by paramedics. Ms. Maldonado 

also testified that an air ambulance was not required to perform the 

transportation, and that if one had been required, the Health Center would 

have called on a different provider than the Respondent. 
Another of the Respondent's witnesses was Robert Emerick, the other 

passenger on the flight from Culebra. He testified that there was no one on 

the flight who was attending to the patient. He himself is an automobile 

mechanic, and he purchased his passage on the flight to Isla Grande because 

there was an empty seat on the aircraft and he had some private business on^ 

the main island. Mr. Emerick also testified that there was no medical 

equipment, such as oxygen, on the aircraft, and that the patient did not need 

or receive medical attention during the flight. When the aircraft landed, he 

and others assisted in removing the patient and transferring her to the 

ambulance. 

The definition of "air ambulance," as used in the Operations 

Specifications for the Respondent's Islander (Exhibit 4) turns on the service 

actually performed as well as the configuration of the aircraft. The fact that 

the aircraft has been modified to carry a passenger in a recumbent position 

on a stretcher is not dispositive. The term "Air Ambulance Operations" is 

defined as follows: 

(a) Air transportation of a person with a health condition that requires 

medical personnel as determined by a health care provider; or 

(b) Holding out to the public as willing to provide air transportation to 

a person with a health condition that requires medical personnel as 

determined by a health care provider including, but not limited to, 

advertisement, solicitation, association with a hospital or medical care 

provider; and 

(c) Uses an air ambulance aircraft, either fixed wing or helicopter. 

The term "Air Ambulance Aircraft" is defined as: 

An aircraft used in air ambulance operations. The aircraft must be 

equipped with at least medical oxygen, suction, and a stretcher, 

isolette, or other appropriate patient restraint/containment device. The 

aircraft need not be used exclusively as an air ambulance aircraft and 

the equipment need not be permanently installed. 

An air ambulance is by definition an aircraft that is used for the 

transportation of persons whose medical condition is such that they must be 

accompanied by medical personnel as determined by a health care provider. 

It is not simply an aircraft that is equipped to carry a passenger who is 

confined to a stretcher or litter. The aircraft must be equipped with oxygen 
and suction for use by the patient, along with the stretcher, in order to 

qualify as an "air ambulance aircraft." The passenger must be attended by 

someone with medical training, and the presence of the attendant must have 

been required by a health care provider. If the aircraft does not qualify as an 

"air ambulance aircraft," the service provided by that aircraft cannot be 

deemed air ambulance service. 

Hence, in order the prove that an air ambulance service was being 

performed, the Complainant must at a minimum present evidence that either 

(a) the aircraft transported a person who, because of ill health, was 

accompanied by, e.g., a doctor, nurse, paramedic or other medically trained 

individual; and (b) the physician or other person who treated the patient 

determined that it was necessar}' to have a medically trained individual 

accompany the patient on the flight. In this case, the Complainant has not 

sustained its burden of proof with respect to the charge of unlawfiilly 

performing air ambulance service. There is no evidence in the record to 

prove that the patient whom Inspector Jester saw being removed from 

Respondent's aircraft was either accompanied by medically trained 

personnel or was the subject of a recommendation by her doctor or any other 

person at Culebra Medical Center that she must be so accompanied. In fact, 

the physician who treated her as well as the head of the Medical Center 

where she was seen both testified that there was no recommendation for a 

medically trained person to accompany the patient on the flight. 

The issue is not even close. Inspectors Jester and Rodas could have 

ascertained that this was not an air ambulance service simply by making a 

few telephone calls to Culebra. The fact that they neglected to do so and 

instead relied on erroneous inferences from a few distant photographs does 

not redound to the credit of them or the Complainant. 

For these reasons, I find and determine that the charge of conducting 

an air ambulance service in violation of Respondent's Operations 

Specifications cannot stand. It must be, and will be, dismissed with 

prejudice. 

III. The Charge of Operating an Aircraft In a Careless or Reckless 

Manner So As to Endanger Life or Property was Unproven. 

In its complaint, the FAA alleged that the Respondent operated the 

Islander aircraft on the June 8, 2008 flight in a careless or reckless manner. 
The gravamen of this charge is the claim that when the Respondent modified 

the aircraft by removing two seats and installing a frame to hold the 

removable stretcher, it performed the installation so that the stretcher was 

carried backwards, i^ , with the patient's head towards the front of the 

aircraft rather than with the head of the patient towards the rear of the ^ 

aircraft. The complaint also alleges that the stretcher was installed with only 

two safety belts, whereas four safety belts were required. 

In its post-hearing briefs, the Complainant has attempted to transmute 

its initial claim of violating § 91.13(a) of the FAR into a broad attack on 

whether the Respondent took proper care of the patient during the flight 

from Culebra to Isla Verde. The problem that Complainant cannot 

overcome, however, is that it did not make this claim in its complaint or in 

any other pleading preceding the hearing. Elementary principles of due 

process require that the Complainant must, at an early stage of the 

proceeding, give the Respondent clear notice of the claims the Respondent 

must meet. It is beyond question that, at the time this case went to hearing, 

the Complainant's case for a violation of § 91.13(a) was founded on the 

manner in which the stretcher was installed and the number of safety belts 

attached to it. The Complainant simply cannot, at the post-hearing briefing 

stage, shift its focus and assert that a totally different theory of liability was 

established by the evidence. Its case must rest on the validity of its original 

contention that the aircraft was operated "in a careless or reckless manner so 

as to endanger the life or property of another" because the stretcher was 

installed improperly and had an insufficient number of safety belts. 

The principal witness for the Complainant on this issue was 

Maintenance Inspector Rodas. Inspector Rodas was not at the Isla Grande 

field on the date in question and, therefore, could not have examined the 

aircraft to ascertain how the framework that held the stretcher was installed. 

Instead, his primary evidence for his conclusion that it had been installed 

backwards was the photographs taken by his colleague. Inspector Jester. 

Inspector Jester testified that he examined the interior of the aircraft. He did 

so, however, only after the stretcher with the patient on it had been removed. 

Hence, his examination did not permit him to ascertain the configuration of 

the stretcher unit during the flight from Culebra. The earliest of his photos 

in the record appears to show the stretcher after it had been removed from 

the aircraft. There were no photos showing the interior of the aircraft while 

the patient was on board. It is clear, therefore, that Inspector Jester reached 

his conclusion about the so-called "backwards" installation of the stretcher-
holding mechanism by inferring that conclusion from a photograph of the 

stretcher (and a group of people surrounding it) as it was held on the tarmac 

outside of the aircraft. This was a rather strange inference to draw, since 

there is no indication in the photographs (at least those that were offered in 

evidence by the FAA) as to how the stretcher had been removed from the "^ 

aircraft - feet first or head first - or how it had been moved within the 

aircraft before it came out the rear door. 

The evidence proffered by the FAA also included the installation 

instructions that accompanied the aircraft manufacturer's "kit" for the 

removal of two passenger seats and their replacement by the stretcher unit. 

The instructions will be found in Exhibit 5. It is true that those instructions 

teach that the unit should be installed so that the occupant of the stretcher 

has his or her head facing the reiar of the aircraft. It is also noteworthy, 

however, that the Respondent is not charged with failure to follow those 

instructions; it is charged with operating in a careless or reckless manner. 

This means that the Complainant, in order to make its case, must do more 

than merely demonstrate that the stretcher unit may have been installed in a 

manner inconsistent with the manufacturer's directions. The FAA was 

required also to prove that the failure to follow those directions produced a 

palpable danger to human life or property. This, the Complainant failed to 

do. 

In its initial brief, the Complainant charges Air Charter with a "breach 

of the duty of care to treat an immobilized, allegedly schizophrenic human 

passenger with a medical condition the same as a carrier would treat cargo 

(i.e. loaded in the back of an aircraft with no attention until unloaded.)" 

Comp. Init. Br. At 1-2. The trouble with this outrageous charge is that there 

is no evidence (medical or other^^ise) to support it. The only physician who 

testified stated categorically that the patient's medical condition did not 

require her to be attended during the flight. In addition, the FAA's 

complaint in this case did not chiarge the Respondent with a "breach of its 

duty of care." The charge was improper installation of a stretcher equipped 

with an insufficient number of safety belts. 

When asked what danger to life or property may have resulted from 

the manner in which the stretcher kit was installed. Inspector Rodas 

•* The instructions also include directions for removal of four seats and the installation of two stretchers in 

their place. So far as the record shows, the two-stretcher option was never used. 
mentioned, in a vague way, that the installation may have adversely affected 

the pilot's weight and balance calculation. But he could not adequately 

explain why that might be so. I asked him directly whether he was assuming 

that the patient's head weighed more than her feet or vice versa and I did not 

receive a satisfactory answer. Inspector Rodas conceded that he did not 

know whether the patient was lying down or sitting up during her journey. 

As we have noted. Inspector Rodas did not interview anyone who was 

aboard the aircraft during the fiight, nor was he able to describe how the 

calculation of the aircraft's center of gravity might change depending on the 

location of the patient's head relative to her feet,^ 

During his testimony. Inspector Rodas was compelled to retract the 

charge, found in the FAA's complaint, that the stretcher unit used by 

Respondent lacked a sufficient number of safety belts. He did so after being 

shown the Britten-Norman instructions for equipping the aircraft with a 

stretcher unit; those instructions showed that the stretcher was to be 

equipped with two safety belts crossing over the upper torso of the patient. 

If Inspector Rodas had done his homework sufficiently, he would have 

learned that the stretcher unit was part of a kit supplied by a manufacturer 

who worked with Britten-Norman, the builder of the aircraft; the safety belts 

were part of the kit that had been installed on the aircraft. Hence, in the 

absence of evidence that Respondent had removed one or more belts (and 

there was no such evidence), the number of belts seen in the photographs 

could not have been insufficient,^ The fact remains that neither Rodas nor 

his colleague had performed a thorough investigation on this issue. 

Much of the testimony during the hearing concerned the Respondent's 

installation of the stretcher kit without first securing the approval of the 

FAA. Under Part 43, Appendix B, section (a) of the FAR, a person 

performing a major alteration or repair to an aircraft must obtain the prior 

approval of the FAA for the work by submitting a Form 337 to the local 

FSDO. In April 2009, the FAA learned that the Respondent had installed 

the stretcher unit in its aircraft without submitting a Form 337 to authorize 

the installation. As a result, the Miami FSDO sent the Respondent a 

warning notice about this alleged violation of the Regulations. See Exhibit 

' In fact, Rodas's testimony on cross-examination demonstrated that he did not know how to calculate the 

center of gravity. He is not a pilot. 

* The person who strapped the patient to the stretcher for her removal from the aircraft erroneously locked 

the two upper belts parallel to each other, rather than criss-crossing them over her torso. The Respondent, 

however, was not charged with locking the belts improperly; it was charged with having an insufficient 

number of belts, a charge that was palpably false. 
23. The Respondent then filed a Form 337, and the FAA closed the case, 

notifying the Respondent that "this matter does not warrant legal 

enforcement action." 

During the hearing, the FLespondent maintained that the 

Complainant's decision to terminate the case without enforcement action 

barred the agency from now asserting a claim that the stretcher unit had been 

improperly installed and lacked the requisite number of safety belts. A great 

deal of testimony, including the testimony of Hernando Otero, Respondent's 

expert witness, was devoted to the question whether the FAA had been 

correct in insisting on the submission of a Form 337.^ 

The issue of whether the removal of two seats and the installation of 

the stretcher unit in their place constitutes a major alteration requiring FAA 

approval is not relevant to this case, however. There may be a great deal to 

be said for the Respondent's contention that the FAA may not prosecute a 

civil penalty claim after notifying the putative Respondent that it is closing 

the books on the matter without formal enforcement action. The same 

principles of repose that underlie the doctrines of^ res judicata and double 

jeopardy would seem to dictate that the agency must be held to its initial 

decision in such cases. Nevertheless, that issue is not ripe for decision here. 

The Respondent has not been charged in this case with causing a major 

modification of its aircraft without FAA's prior approval. It has been 

charged with operation of an aircraft in a careless or reckless manner. That 

charge relates to the manner in which the stretcher kit was installed - not to 

the installation of the kit per se. Hence, the Respondent's claim that the 

FAA's prior no-enforcement decision exonerates it from the charge is 

incorrect. 

Nevertheless, I find that there is no validity to the Complainant's 

allegation that operation of the aircraft with the stretcher installation as it 

was constituted a careless or reckless act that endangered human life or 

property. The ineluctable fact is that neither of the Complainant's witnesses 

appears to have actually examined the manner of the stretcher's installation 

during the flight; if they did, neither testified to the results of that 

^ The warning notice spoke about the failure to submit "approved data" to support the modification. It is 

clear, however, that the aircraft manufacturer's specific instructions for installation of the stretcher kit 

constituted sufficient "approved data." 

* Otero testified that a 337 was imnecessary because the installation of the stretcher kit, utilizing the same 

anchorage hardware as had been used for the passenger seats that the kit replace, was not a "major repair or 

alteration." 

10 
installation. All that the record contains on the point is Inspector Jester's 

photographs showing the stretcher with a patient upon it after it had been 

removed from the aircraft, coupled with Inspector Rodas's inference that the 

stretcher had to have been installed backwards. That inference is faulty, as 

we have seen, or at least completely unsupported. To leam whether the -* 

stretcher was properly installed, one would either have had to examine it 

while it was in the aircraft or interrogate someone who was on the aircraft 

while the stretcher was carrying a patient. Neither of the two investigators 

did this. Nor was there any persuasive testimony that the manner in which 

the unit was installed presented an unreasonable risk of harm to its occupant 

or to the aircraft as a whole during the flight from Culebra to the main island 

of Puerto Rico. 

In short, the Complainant has failed to sustain its burden of persuasion 

as to this charge. As a result, the controversy over whether Form 337 or its 

approval by the FSDO was necessary is moot. 

IV. Respondent is Liable for Not Carrying a Current 

FAA-Approved Flight Manual. 

There does not appear to be much dispute concerning the facts that 

gave rise to Complainant's third charge: failure to have on board the aircraft 

a copy of the current, approved flight manual. As we have noted above, § 

121.141(a) of the FAR requires a certificate holder to keep "a current 

approved airplane flight manual for each type of aircraft that it operates" and 

§ 121.141(b) states that a copy of the manual must be carried "[i]n each 

airplane required to have an airplane flight manual in paragraph (a) of this 

section." When Inspector Jester asked the pilot of Respondent's aircraft to 

exhibit a copy of his flight manual, the pilot produced a copy of what is 

called FM-20. FM-20 is the flight manual issued by the manufacturer of the 

aircraft, Britten-Norman, Ltd., a British company with headquarters on the 

Isle of Wight.' The manual had been approved for use with the "Islander" 

by the British government's counterpart of the FAA, the Civil Aviation 

Authority. It came with the aircraft when the Respondent acquired it from a 

company based on Tortola, one of Great Britain's Caribbean islands. At 

some point, however, the Britten-Norman company issued a version of the 

Flight Manual valid for operation of the aircraft in the United States. This 

version is called FM-7. The FAA approved the FM-7 version and required 

' A copy of FM-7 will be found in Exhibit 37. 

11 
operators to use it for domestic operations. So far as the record shows, the 

two versions are practically identical, except perhaps for changes in the 

spelling of some terms. The witnesses could point to only one substantive • 

difference: the fact that the gross weight figure in the U.S. version is 100 

pounds lighter than the figure that appears in FM-20.'^ 

When the "Islander" was acquired by the Respondent, in July 2005, 

the FAA issued an Airworthiness Certificate for the aircraft. See Exhibit 35. 

The certificate covered the aircraft and its associated equipment. The 

Respondent's contention is that the FAA's airworthiness certificate includes 

approval of the Flight Manual that accompanied the aircraft and that was 

shown to the FAA representative who signed the certificate. Hence, says the 

Respondent, there was no violation of the FAR provisions that require a 

"current approved" flight manual to be carried on an aircraft. The problem 

with the Respondent's position is that the word "current" cannot be stretched 

to mean "current at the time the initial airworthiness certificate was issued." 

The term "current" means "current at the time the FAA inspects the 

aircraft." At some point, the FAA in its wisdom decided that FM-7 should 

be adopted and should supersede FM-20. To do so was well within the 

discretion of the agency. Once that decision was made and duly published, 

parties who operated the Britten-Norman "Islander" were duty-bound to 

replace their old flight manuals with the one that the FAA had blessed. The 

Respondent did not do so. Thereby, it violated § 121.141 of the FAR. 

The Respondent also stresses the fact that the aircraft in question was 

ramp-inspected on a number of occasions, and no FAA inspector objected to 

the FM-20 manual that it carried. This is irrelevant. The failure of lawenforcement personnel to detect a violation on one or more occasions does 

not transmute the violation into compliance with the law when it finally 

comes to light. The FAA's lack of enforcement action with respect to the 

flight manual during prior ramp inspections did not create an immunity from 

prosecution on this particular occasion. 

The Respondent also argues that the Agreement between the United 

States and the United Kingdom on Certificates of Airworthiness for 

Imported Aircraft, signed at London on December 28, 1971, 23 U.S.T. 4309, 

conferred on it the right to continue to use the same flight manual that had 

been supplied by the aircraft manufacturer. Paragraph 2(b) of the 

10 See Tr. 416-17. 

12 
Agreement provides that if the exporting country's aeronautical authorities 

have certified than an aircraft is airworthy, "the importing State shall give 

the same validity to such certification as if the certification had been made 

by its own competent aeronautical authorities . ..". That is exactly what 

happened when the FAA issued an airworthiness certificate for 

Respondent's aircraft in July 2005. But that is not the end of the matter. For 

paragraph 4 of the Agreement also gives the "competent aeronautical 

authorities of the importing State," Le., the FAA, the right to prescribe 

"additional requirements which the importing State finds necessary to ensure 

that the product meets a level of safety equivalent to that provided by its 

applicable laws, regulations and requirements . . .". This latter clause 

vindicates the FAA's right to change its mind and to direct that the FM-20 

manual must be replaced by the FM-7 manual. That is exactly what seems 

to have happened here. Consequently, the international agreement does not 

absolve the Respondent from its duty to adopt the latest FAA-approved 

flight manual for use in its aircraft. 

For these reasons, I find ajid determine that the Complainant should 

prevail on the third of its charges against the Respondent - failure to carry 

the current, approved flight manual on its aircraft. 

V. A Civil Penalty of $550 is Appropriate. 

The charge for which the Respondent has been found liable - failure 

to have a current flight manual aboard the aircraft - is one that, standing 

alone, would not have merited this lengthy and complex prosecution to 

which the Respondent has been subjected. Inspector Rodas admitted as 

much while on the witness stand; in the absence of the first charge -

operating an unauthorized air ambulance service - this case would have 

resulted in a warning letter. Nevertheless, the Complainant has established, 

after a trial-type hearing in accordance with the Administrative Procedure 

Act, that the Respondent was in violation of a provision of the FAR. The 

Respondent must therefore pay the price. 

In determining what that price should be, a good place to start is with 

the Table of Sanctions, Appendix B to FAA Order No. 2150.3B. It is in 

evidence as Exhibit 16. The Table of Sanctions lists different levels of 

penalties for violations by air caiTiers, depending on the size of the carrier. 

There was, however, no evidence placed in the record bearing on the size of 

the Respondent, either in terms of its gross annual revenues or the number of 

13 
aircraft in its inventory or the number of employees on its staff Since the 

burden of proof with respect to those issues of fact rested on the 

Complainant, we must assume that that the result most favorable to the 

Respondent is true. Hence, I conclude that the Respondent would be 

considered a "GROUP IV" air carrier under Order No. 2150.3B, i^ , a small 

business concern. The order also provides, in Figure B-11 found on page B12, that "failure to maintain a current manual" warrants a "minimum"-level 

civil penalty. (The order addresses maintenance manuals, not flight 

manuals. I also recognize that "failure to maintain" is not the same as failure 

to have the manual on board. This, however, is as close as we can come, 

since the order does not specifically address the latter violation.) Order No. 

2150.3B says that the range of the minimum penalty for a small business 

concern would be $550-$2,199. 

In this case, I conclude that a penalty at the lower end of the range is 

appropriate, for several reasons. First, the fact is that the Respondent's 

aircraft was equipped with a serviceable flight manual; the trouble was that 

it was out of date. The second is that there is no evidence that the 

Respondent committed the violation intentionally. Third is the fact that no 

adverse effect on the safety of flight was shown to have taken place as a 

result of the violation. In the only reported case my research has uncovered 

where an airman was subjected to a civil penalty for not having a current 

flight manual, Eric W. Hereth, FAA Order No. 95-26, 1995 W.L. 853896 

(1995), a $3,000 civil penalty was deemed appropriate in a case where the 

pilot had consulted the wrong flight manual and, as a result, ran out of fuel 

and crashed-landed the airplane. What happened in the instant case was not 

nearly as egregious and demonstrates, in my view, that a penalty at the lower 

end of the range is appropriate. 

VL Order. 

In consideration of the foregoing, and subject to review by the 

Administrator of the Federal Aviation Administration on appeal or on the 

Administrator's ovm motion, IT IS ORDERED THAT -

1. The Respondent, Air Charter, Inc., is liable to the United States of 

America, as represented by the Federal Aviation Administration, 

for a civil penalty in the amount of five hundred fifty dollars 

($550.00); 

14 
2. The amount of the civil penalty for which the Respondent has 

been held liable herein shall be paid to the Federal Aviation 

Administration forthwith; and 

3. The charges against the said Respondent set forth in Paragraph III. 

1. a. and b. of the Complaint are dismissed with prejudice. 

Isaac D. Benkin 

Administrative Law Judge 

[Note: This decision may be appealed to the Administrator of the FAA. 

The Notice of Appeal must be filed not later than 10 days after service 

of this decision (plus five additional days, if this decision is served by 

mail). 14 C.F.R. §§ 13.233(a), 13.211(e). The appeal must be perfected 

with a written brief or memorandum not later than 50 days after service 

of this decision (plus five additional days, if this decision is served by 

mail). 14C.F.R.§§ 13.233(c), 13.211(e). The Notice of Appeal and brief 

or memorandum must be either (a) mailed to the Federal Aviation 

Administration, 800 Independence Avenue, S.W., Washington, DC 

20591; Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright 

Building—Suite 2W1000, or (b) delivered personally or via expedited 

courier service to the Federal Aviation Administration, 600 

Independence Ave., S.W., Wilbur Wright Building—Suite 2W1000, 

Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430. 14 

C.F.R. §§ 13.233(a), 13.210(a)(2), (1). A copy of the Notice of Appeal 

and brief or memorandum should also be sent to counsel for the FAA in 

this proceeding. 14 C.F.R. § 13.233(a).] 

15 
FAA Docket No. CP09SO0008 

(Civil Penalty Action) 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building—Suite 2W1000' 

ONE COPY 

Gabriel I. Penagaricano, Respondent's Counsel 

PMB 239 

405 Ave. Esmeralda Ste. 102 

Guaynabo, PR 00969 

TEL: 787-287-9024 

Francisco Torres, Chief Executive Officer 

Air Charter Inc., Respondent 

P.O. Box 810352 

Carolina, PR 00981-0325 

TEL: 787-405-1592 

Gerald A. Ellis, Complainant's Counsel 

Attorney, Office of the Regional Counsel., ASO-7 

Southern Region 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

The Honorable Isaac D. Benkin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

TEL: Attorney 202-366-0437 

Legal Assistant 202-366-2132 

FAX: 202-366-7536 

' Service was by U.S. Mail. For service in person or by, expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building—Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.