The first step taken on behalf of the Owner of the Cherokee Six aircraft was to try to show the FAA attorney that the anonymous complaint was incorrect. The Owner of the Aircraft had a home in the Bahamas which had been blown away by the recent hurricane there. He also had business interests in a marine salvage business operating out of the Bahamas. Both he and a commercial pilot he hired from time to time flew his Cherokee Six aircraft from South Florida to the Bahamas and back frequently with supplies for rebuilding the Owner’s home and for supporting the Owner’s business operations in the Bahamas. No “charter” was ever involved. But the rear seats were frequently removed to accommodate the maximum amount of supplies. The operations were totally within Part 91, and no evidence had ever been found to the contrary.
But the FAA attorney had not decided to proceed with enforcement on the anonymous allegation of illegal charter. Rather, she was proceeding on the basis that the aircraft had been operated in an unairworthy condition because it had been flown with the rear seats removed.
So the next obvious step was to attempt to show the FAA that not only was it not an unairworthy condition to operate the aircraft with some or all of the rear seats removed, but that the aircraft had specifically been designed to operate in this manner. The FAA, however, was hanging its hat on the fact that the actual Type Certificate for the aircraft did not have a specifically approved seating configuration for operation of the aircraft without some of the seats installed.
One of the problems with this argument, technically-correct as it may be, is that owners and operators of aircraft rarely, if ever, see the actual Type Certificate for the aircraft. These are confidential documents that are not publicly available. Rather, they see OTHER FAA approved documents. The owner pointed out:
Although the Type Data Certificate (Page 5) does list the aircraft as having either six or seven seats, the Aviation Safety Inspector is incorrect that all of those seats are "required " equipment. Rather, all seats except for the left front (pilot's) seat, are only "supplied" equipment which constitutes the condition in which the aircraft is supplied by the factory, but are NOT required equipment for the purposes of flight.
The advertised performance specifications for the aircraft, as set forth in the Manufacturer's Brochure, states:
If you review the Piper Owners Handbook for the Cherokee Six 300 of this vintage, you will see that page 4 reads: "The center and rear seats are easily removable for added cargo space."
Report VB-154, the Official serialized Airplane Flight Manual, page iii, shows at Revision 10, page 4 indicates: "Changed "Seven Passenger Operating Limitations": to "Loading Limitations" and removed reference to seven passengers. It was signed by Ward Evans.
Report VB-155, the "Log of Revisions for the Weight and Balance Data" signed by FAA Official Herb M. Toomey on 12/17/68 at Page 10, Section 1 of the Standard Equipment List, at the top left of the page, starts with "check if installed". This is for Standard Equipment which is not “Required Equipment."
Note under "Miscellaneous" the only REQUIRED seat (not mentioned here) is the Left Front Seat. There is a line to be checked for whether the Right Front Seat is installed or not. There is a line to be checked if the Center Seats (2) are installed or not. And there is a line to be checked if the Rear Seats (2) are installed or not. For each of those seats the ARM AFT of DATUM and the MOMENT (in pound-inches) is supplied. The only seat which is REQUIRED Standard Equipment is the Left Front (pilot's) seat.
If you examine the Piper Service Manual for the PA-32-300, at Page 4E18, Item (9) provides "REAR SEAT QUICK DISCONNECT MECHANISM INSPECTION (See Figure 3-8.)
(a) Inspection. In PA-32260 S/N's 32-1 thru 32-75000002; and PA-32-300 S/N's 32-40001 thru 32-7540028; each 100 hours or at each annual inspection, whichever comes first, inspect the quick-disconnect mechanism for each rear seat as follows:
1. With one hand, grasp the lower rear portion of the seat and lift up.
2. The rear seat legs should disengage from the retention mechanism with a noticeable "snap," when a minimum of 10 - 15 lbs of pull is applied. If so, inspection is complete.
. . .
Figure 3-8 shows the simple retention mechanism for the seats.
Nowhere in any of Piper's literature is there any indication that flight without the rear seats is in any way an issue that was not considered.
In future Pilot Operating Handbooks (POH's) (after the change was made from bare-bones Aircraft Flight Manuals (AFMs) to more-complete POH's), the following language was added:
The center and rear seats are easily removed to provide room for bulky items. Removal of the seats is accomplished by removing the two bolts holding the aft attach points and sliding the seat aft.
NOTE
To remove the center seats, retainers securing the back legs of the seats must be unlocked. Releasing the retainers is accomplished by de-pressing the plunger behind each rear leg. Any time seats are installed in the airplane, the retainers should be in the locked position.
To remove the rear seats, depress the plunger behind each front leg and slide seat to the rear.
CAUTION
Removal of any seat(s) require Weight and Balance computations. Refer to Section 6 of this POH to determine suitability for flight with seats removed.
Even after providing the FAA copies of ALL of this, the FAA was STILL not convinced that there was not an airworthiness issue with the operation of a PA-32 aircraft with some of the rear seats removed (as long as the weight and balance of those missing seats was taken into account by the pilot when calculating weight and balance prior to operation). The FAA refused to settle.
Perhaps even more startling is that the FAA did not attempt to deal with this issue as a “Compliance” matter under the new “kinder, gentler FAA” format for inadvertent mistakes as opposed to attempting to collect a huge Civil Penalty from the Owner (who was not flying the aircraft at the time).
At this point, the author was truly getting frustrated (as was my client, the Aircraft Owner) [Full disclosure, the author owned and operated a 1976 PA-32R-300 Lance for 10 great years and is a lover of the type.] So, the author decided to reach out to the general counsel for AOPA, Justine Harrison, whom the author had known for many years. Ms. Harrison found the FAA’s position on this matter confusing and yet another example of the FAA’s legal enforcement team failing to execute prosecutorial discretion. AOPA was also working at the time with the General Aviation Manufacturers’ Association (GAMA), which was concerned that its member manufacturers should be able to put the relevant materials for operating an aircraft safely and legally into the documents that the pilot is required to possess and refer to, as opposed to obscure documentation normally seen only be the manufacturer’s engineers and the FAA engineers.
Ms. Harrison contacted the General Counsel for GAMA at the time, Lauren Haertlein, to coordinate, out of concern that the FAA’s stance would create problems for the AOPA member as well as the owners and pilots of thousands of Cherokee Six aircraft as well as Lance, Saratoga, even Seneca and other PA-32 derivative aircraft. The author set up a Zoom conference call with all of the FAA folks who had an interest in this matter, including the enforcement attorney, the Aviation Safety Inspector (ASI), and the engineers from the Aircraft Certification Office; and the Owner, his mechanic, the author, the General Counsel for AOPA and the General Counsel for GAMA. We spoke for over an hour. Toward the end of the time, the ASI, who had been rather silent so far, burst out saying that we were all missing the point! This matter, he said, was about illegal charter! (It is the author’s understanding that this same ASI had stated to the Owner’s mechanic previously that, “if we can’t get you one way, we will get you another way.”) After the call ended, we heard nothing for months.
Finally, toward the end of a year, the FAA sent a simple letter that said they were not going to enforce the Civil Penalty. The letter also said, rather ominously, that the local FSDO would contact the owner regarding the issues. To date, months later, the FSDO has not contacted the Owner.
The moral of the story is that, without the AOPA Pilot Protection Services plan, the poor Owner would have had to foot the bill for this entire matter, and may not have had the connections necessary to bring in the “big guns” - AOPA and GAMA - to fight for him and for all Cherokee Six (and related type) owners.
While illegal charter IS a serious problem and must be dealt with, what the FAA was doing in this instance was refusing to see that they could not take an investigation which failed to find any evidence of illegal charter and make it into something else in order to attempt to punish the owner and put his “head on a spike” to discourage others from such operations.
Charlie Morgenstein is a Board Certified Aviation Attorney, an instrument-rated private pilot with over 1000 hours, and the former owner of a Piper Cherokee Lance. He has been a panel attorney for AOPA since 2004. Charlie devotes his law practice exclusively to helping pilots and members of the aviation community. MMO Legal Services, LLC. is based in Boca Raton, Florida.
