Phase One Flight Test

Question...is there any regulation concerning the overall airworthiness of an EAB aircraft for Phase One? If the subject aircraft has inoperative systems, or installed items that are broken / malfunctioning, is it legal to continue to fly the aircraft without any repairs being made?

This particular aircraft was inspected, found to be airworthy, and issued a conditional airworthiness certificate.

At a later date, multiple safety related mechanical problems arose.

Still legal to fly without repairs made, or illegal?

I ain't no lawyer ner nuthin'... but.... I sure as heckfire wouldn't board an airplane of any kind that was KNOWN to have "multiple safety related mechanical problems" that were left unattended. But that's just silly old me..

That was a pretty broad brushed question. The obvious answer is ALL Safety of Flight items need to be addressed prior to flight. Non safety of flight items needs to be prioritized. I.E. cracked plexiglass may not be a SOF item but probably needs to be addressed quickly to prevent the crack from propagating. If there is doubt, err on the conservative side.

I can go through and list the items.
First off, the flaps are broken. Will not lock in any position. You can freely move them by hand, up and/or down.
Phase One fly off...fly, or ground the airplane?

If the FAA has the catch all "91.13 (a) Careless or reckless operation" that can be used in almost any circumstance. I don't think they would have a problem making a case against a pilot that flies a plane with critical systems that are known inop. As for flying with inop flaps I suppose it would depend on the plane. There are planes that won't take off without flaps but most planes will. Any plane that has flaps will land without them, it just takes a lot of runway. The question is, why wouldn't the pilot fix the problem before flying? Is the plan to just fly the plane indefinitely without flaps? If the plan is to fix the flaps future, why not fix them now? Fix now or later it will take the same amount of time and money. There is no time limit on when the Phase 1 flight testing must be completed. The appropriate course of action is not too hard to figure out.

Flight control malfunctions are a BIG DEAL to the FAA and NTSB. Flaps that can move through their range of motion without any pilot control sounds extremely dangerous to me, but I've never flown the plane you're asking about. Personally, I wouldn't dream of flying any aircraft that had a known flight control malfunction like that, and I would expect the FAA to take a very dim view of anyone who did.

Problem #2 - Electrical system malfunction. The amps are spiking to 49+. It is an electrically controlled engine, with a MoTeC ECU. That circuit breaker is 15 amps. And the amp meter is in full view, on the Garmin G3X.

Now you have two known problems...flaps inop, and electrical malfunction.

Do you fly, or put the plane back in the hangar for repairs?

Per the POH, flaps are to be used for takeoff and landing. In the event of an emergency landing (engine failure), flaps are to be used.

You definitely need to ground this airplane. The correct thing to do would be determine why the flap system is inoperable. Was it a workmanship error, a design flaw, a component failure, a structural overload, etc and then correct the problem.

A bit perplexed….is your concern determining what is SOF vs deferred maintenance? You didn’t state just where you are in your Phase 1 testing but I would want my plane as pristine as possible. Flight testing has its own inherent risks without being compounded by airframe issues.

Starting to sound like someone in a motorboat dragging a fishing lure on their line?

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Originally Posted by CHICAGORANDY

Starting to sound like someone in a motorboat dragging a fishing lure on their line?

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The question posed is a serious question. It involves the FAA.

The flaps were broken during a previous flight. The flap drive is not strong enough for the air loads, and it broke between the motor and the flap.

Is there a specific CFR concerning Phase One, and known inoperative items on the aircraft?

If the POH requires the use of flaps you’ve pretty much answered your own question. Not familiar with your ECU.

I should quickly add a caveat that IF the fuel line also leaks and you smoke a pipe, but keep dropping the lit matches? Best up the old fire coverage on your insurance policy to the max limits prior to take-off.

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Originally Posted by Airmutt

If the POH requires the use of flaps you’ve pretty much answered your own question. Not familiar with your ECU.

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It's an LS376-495 V8 engine, controlled by MoTeC. It requires electrical power to keep running!

Amps spiked to 50+, ECU breaker tripped, engine quit.

IF, and I DO mean IF this is indeed a serious, legitimate question from someone who not only made it through flight school but IS an actual Pilot with any number of hours under their belt? And not a troll type bit of humour? It would almost demand that I ask - "How badly do you want to prove Darwin and Mrs. Gump were correct?" OF COURSE you should NOT fly any airplane that has "multiple safety related mechanical problems" until they are properly corrected. Whaddya? Goofy?

I hasten to add that I mean no insult to anyone who actually IS incapable of cyphering that level of "'obvious decision making" on their own. I genuinely wish no one to do anything which would cause them injury or death.

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Originally Posted by CHICAGORANDY

IF, and I DO mean IF this is indeed a serious, legitimate question from someone who not only made it through flight school but IS an actual Pilot with any number of hours under their belt? And not a troll type bit of humour? It would almost demand that I ask - "How badly do you want to prove Darwin and Mrs. Gump were correct?" OF COURSE you should NOT fly any airplane that has "multiple safety related mechanical problems" until they are properly corrected. Whaddya? Goofy?

I hasten to add that I mean no insult to anyone who actually IS incapable of cyphering that level of "'obvious decision making" on their own. I genuinely wish no one to do anything which would cause them injury or death.

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It is too bad the hired test pilot...or should I say cowboy, did not have your logic. Does this picture answer your question?
Attachment 9012

Fix that right up with five gallons of 100LL, a railroad flare and GOOD insurance coverage.

So, Tx. Is that your airplane? If not, who's airplane is it, and what are/were the circumstances?

Is this the airplane with the electrical/flap issues, or are you intermingling a couple of different airplanes?

Whatever you're chasing, please put the whole story or situation out there instead of dragging the thread along with cryptic comments and incomplete information.

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Originally Posted by Kyle Boatright

So, Tx. Is that your airplane? If not, who's airplane is it, and what are/were the circumstances?

Is this the airplane with the electrical/flap issues, or are you intermingling a couple of different airplanes?

Whatever you're chasing, please put the whole story or situation out there instead of dragging the thread along with cryptic comments and incomplete information.

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Yes. This is my aircraft.
The story is simply too long to put in one post. There is an active investigation underway. This includes, but is not limited to, the FAA and one or more law firms. No one is chasing anything. The intent is to get serious, intelligent input on the subject matter. This includes any information concerning the CFR's, and how they apply in this case.

Bottom line, the pilot-in-command made a conscious decision to fly an aircraft that was not safe, and not airworthy.

1. Flap drive broken, literally. Not just inoperative.
2. Electrical malfunctions.
a. Over amperage, spiking to 50+ amps. Normal range is 19 to 24.
b. Wiring short, causing engine to cut out.
c. Avionics Master switch, when selected "ON" would cause the engine to momentarily cut out.

Attachment 9013

Attachment 9014

Attachment 9015

That stinks.

What was the (apparent) accident mode? Runway loss of control leading to gear failure? Looks like all 4 prop blades took a hit, so the prop must have been turning.

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Originally Posted by Kyle Boatright

That stinks.

What was the (apparent) accident mode? Runway loss of control leading to gear failure? Looks like all 4 prop blades took a hit, so the prop must have been turning.

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Stand by...long answer coming. Don't have time right now.

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Originally Posted by TXFlyGuy

Question...is there any regulation concerning the overall airworthiness of an EAB aircraft for Phase One? If the subject aircraft has inoperative systems, or installed items that are broken / malfunctioning, is it legal to continue to fly the aircraft without any repairs being made?

This particular aircraft was inspected, found to be airworthy, and issued a conditional airworthiness certificate.

At a later date, multiple safety related mechanical problems arose.

Still legal to fly without repairs made, or illegal?

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It looks like your original question has not been addressed or answered.

In my opinion....it is legal to fly an aircraft with an experimental airworthiness certificate in any condition. The aircraft doesn't have a type certificate to which it must comply.

Legal, yes. Prudent, absolutely not.

Having said that, the FAA could probably interpret several FARs to bring action against the pilot if it could be determined he put people on the ground at risk by flying an aircraft with known and documented safety issues. But this would be action taken against the pilot, not the aircraft.

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Originally Posted by Sam Buchanan

It looks like your original question has not been addressed or answered.

In my opinion....it is legal to fly an aircraft with an experimental airworthiness certificate in any condition. The aircraft doesn't have a type certificate to which it must comply.

Legal, yes. Prudent, absolutely not.

Having said that, the FAA could probably interpret several FARs to bring action against the pilot if it could be determined he put people on the ground at risk by flying an aircraft with known and documented safety issues. But this would be action taken against the pilot, not the aircraft.

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Two CFR's are in play here, and there is no exemption for EAB aircraft.
91.213 (a)
91.13

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Originally Posted by TXFlyGuy

Two CFR's are in play here, and there is no exemption for EAB aircraft.
91.213 (a)
91.13

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FAR 91.213 (a)

Nope. No instruments required for experimental aircraft operated day VFR. This is per the aircraft operating limitations which are part of the airworthiness certificate package.

FAR 91.13

Yep, as I stated above the FAA could bring action against the pilot, but not the aircraft.

I realize the ambiguity associated with many aspects of the amatuer-built experimental realm are difficult to accept when viewed through the prism of certificated aircraft regulations. But in regards to "safety problems" with this particular experimental aircraft:

1) The aircraft has a valid experimental airworthiness certificate

2) It is the pilot's responsibility to determine if the aircraft is in a condition for safe operation.

Oops....you didn't tell us if the aircraft had a condition inspection in the previous twelve months. If yes, we proceed with this discussion. If not....full stop, the aircraft is not legal for flight.

3) In regard to components not being safe for flight; what checklist would we use to make the determination if the aircraft is safe for flight? There isn't one because it doesn't have to comply with a type certificate.

Yes, the experimental realm is sort of like the wild, wild west and is dependent on pilots making good decisions, not an over-arching set of regulations as is found in the certificated universe.

But....regardless of legality I regret the loss of your beautiful aircraft, hope the pilot was not injured. And whatever I state as opinion has absolutely no importance if the FAA and lawyers are involved.....but you did ask for opinions. :)

91.213 - Inoperative Instruments and Equipment


This is the violation. Equipment was broken, not simply inoperative. The equipment that the POH clearly states to use during takeoff and landing. The equipment the POH states to use when making an emergency landing.

All instruments worked fine. The entire electrical system malfunctioned.

Sure...if you were the PIC, of course you will argue that even with all of the broken and malfunctioning installed equipment, you thought the aircraft was safe to fly.
Even a jury of idiots will not buy that. And neither will the FAA attorneys.

Which brings us right back to 91.13.

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Originally Posted by TXFlyGuy

91.213 - Inoperative Instruments and Equipment


This is the violation. Equipment was broken, not simply inoperative. The equipment that the POH clearly states to use during takeoff and landing. The equipment the POH states to use when making an emergency landing.

All instruments worked fine. The entire electrical system malfunctioned.

Sure...if you were the PIC, of course you will argue that even with all of the broken and malfunctioning installed equipment, you thought the aircraft was safe to fly.
Even a jury of idiots will not buy that. And neither will the FAA attorneys.

Which brings us right back to 91.13.

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No POH is mandated for experimental aircraft. Been flying my RV-6 for 22 years, never had a POH and that is legal. Since a POH is not required I fail to see where a pilot could be bound to a POH even if one had been written for a particular aircraft, it carries no regulatory weight.

By reading between the lines it appears you want to hold the pilot responsible for flying an unsafe aircraft, my dog is not in that hunt. I'm not taking sides, just discussing the rules that pertain to amateur-built experimental aircraft.

You asked, I've answered. :)

I am beginning to 'infer' that there 'could' be an upcoming lawsuit/legal action being pursued against the test pilot in this case? Making commentary about it discoverable down the road in a court proceeding? Everyone has posted their opinion regarding foolishly flying a known unsafe airplane, and no one here is stating a qualified legal opinion, so I really don't know what else the OP is expecting to derive from further discussion?

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Originally Posted by TXFlyGuy

Two CFR's are in play here, and there is no exemption for EAB aircraft.
91.213 (a)
91.13

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2. These operating limitations do not provide any relief from any applicable law or regulation. This aircraft must be operated per applicable regulations and the limitations prescribed herein.

Please show me where an EAB plane can be operated in total disregard of the above CFR's.

Court is adjourned. This is my final post on the issue.

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Originally Posted by TXFlyGuy

2. These operating limitations do not provide any relief from any applicable law or regulation. This aircraft must be operated per applicable regulations and the limitations prescribed herein.

Please show me where an EAB plane can be operated in total disregard of the above CFR's.

Court is adjourned. This is my final post on the issue.

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Well....in that case I suppose there is no point in anyone replying to your query......guess you didn't get the answers you wanted. ;)

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Originally Posted by Sam Buchanan

Well....in that case I suppose there is no point in anyone replying to your query......guess you didn't get the answers you wanted. ;)

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Ask a question. Sift through the answers looking for one that agrees with a specific POV. Discount all the others. SOP. ;-)

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Originally Posted by TXFlyGuy

91.213 - Inoperative Instruments and Equipment
This is the violation. Equipment was broken, not simply inoperative.

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Actually, I think that 14 CFR Part 91.213(d) is the section you want. It allows for flight with inoperative (that's what "broken" means), HOWEVER, (d)(3) only allows for operation with inoperative equipment if, per (ii) it's "deactivated" and placarded as such, along with being logged.

Now, I'd argue that had the pilot locked the flaps in place, placarded the flap handle as INOP, and logged it, it would be perfectly legal to fly the plane (stupid, but legal) with inoperative flaps. But he didn't. No inactivation was performed, nor was anything placarded or logged.

So, by the book, POH or not, MEL or not, this was illegal due to non compliance with 91.213(d)(3)(ii).

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Originally Posted by Marc Zeitlin

Actually, I think that 14 CFR Part 91.213(d) is the section you want. It allows for flight with inoperative (that's what "broken" means), HOWEVER, (d)(3) only allows for operation with inoperative equipment if, per (ii) it's "deactivated" and placarded as such, along with being logged.

Now, I'd argue that had the pilot locked the flaps in place, placarded the flap handle as INOP, and logged it, it would be perfectly legal to fly the plane (stupid, but legal) with inoperative flaps. But he didn't. No inactivation was performed, nor was anything placarded or logged.

So, by the book, POH or not, MEL or not, this was illegal due to non compliance with 91.213(d)(3)(ii).

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You are 100% correct. As stated, the Ops Limits give no relief. A DAR advised the Ops Limts are in addition to the CFR's.

As I mentioned in an earlier post, IMHO the OP has no plans on attempting flight, they are hoping to get something from this portion of the aviation community to use against the goof who DID fly it knowing there were safety issues or perhaps use to challenge a denied insurance claim? This post has sounded 'odd' from the start.