Dot your i’s
Can I be held liable when someone else is using my aircraft?
Maybe you co-own your aircraft, or you lease it to others. Many aircraft are used by multiple individuals or companies—it certainly helps with cost efficiency and expands access to aircraft for those who want to fly more. But what happens if there is an accident when you are not in actual possession or operational control of your aircraft and someone else is?
The history
A federal law has existed since the late 1950s to limit the liability of a lender, lessor, or owner from liability for personal injury, death, or property loss or damage related to an aircraft accident when they were not in possession or control of the aircraft. In concept it seemed clear and simple. In practice, courts had differing interpretations of wording in the older version of the law that impacted how broadly the liability protection extended. Sometimes owners who were not in possession or operational control of an aircraft were held liable anyway.
In 2018, federal law was revised to clarify and expand protections for owners and lessors and put them in a stronger position to avoid liability when they were not in possession or control of the aircraft. Is the new language helpful?
The new case
This summer, a federal court in Florida applied the newly revised language in an aircraft accident case, deciding an aircraft owner was not liable for damages and losses. A company that owned a Cessna 402 had a written lease agreement with a Part 135 charter operator, giving the operator exclusive possession and control of the leased aircraft. During a charter flight from Florida to the Bahamas, the aircraft ran out of fuel and crashed into the ocean, and the charter passenger survived but suffered multiple injuries. When lawsuits are filed, it’s common to name as many parties as possible as defendants, and in this case, the passenger’s wife sued the owner of the aircraft, the charter operator, the pilot, and the FBO that fueled the aircraft. In naming the owner, she argued the company that owned the aircraft was vicariously liable for conduct of the charter company and its pilot.
While the owner did have to defend itself, the court quickly decided the owner could not be held liable and cited the revised language of the federal law as the basis for the decision. The case continues against the other named defendants.
It’s important to note that the federal law doesn’t automatically apply to all owners, lessors, and lenders. Certain conditions need to be met, including: If you are leasing the aircraft to another person, the lease must be for at least 30 days; the owner/lessor/lender cannot be in actual possession of the aircraft; and the owner/lessor/lender cannot be in operational control of the aircraft.
Practical takeaways
If you own an aircraft and allow others to fly it:
Put your agreement with the others in writing to avoid misunderstandings and confusion after the fact. While lawyers will always advise you to put together a formal agreement signed by both parties, note that an email you send the user with the details of your agreement is also a form of written agreement. Avoid oral agreements as when legal issues arise, having written documentation is important.
Ensure there is a clear handoff of full operational control in your written agreement. That’s a key element in the law.
If you are leasing the aircraft, ensure the lease term is at least 30 days. That’s also a key element in the law (49 U.S.C. 44112).
The bottom line: If an owner, lender, or lessor of an aircraft meets all the conditions listed in the law, then they have an argument to make that they cannot be held liable for “personal injury, death, or property loss or damage that occurs because of an aircraft, engine, or propeller or because of the flight of, or an object falling from, the aircraft, engine or propeller.” How strong the argument is will depend on the unique facts and circumstances of the situation.
Justine A. Harrison serves as AOPA’s general counsel and corporate secretary, leading the legal department and overseeing AOPA’s Pilot Protection Services.
