Occasionally a manufacturer may produce a balloon or component that is flawed or inappropriate, but which has passed FAA approval procedures and been sold to customers. It doesn't happen very often, but if it does, the manufacturer has four options to address the default: 1. Advise owners and all concerned; 2. Issue a Service Letter or Service Bulletin; 3. Ask the FAA to issue an Airworthiness Directive (AD); 4. Do nothing.
Recently a part approved (for use by a balloon manufacturer) by a regional FAA Aircraft Certification Office (ACO) was declared a misapplication by the manufacturer of the item. When confronted by FAA inspectors, customers, and repair stations, the balloon manufacturer chose to do nothing. The FAA's ACO (that had approved the part) chose to do nothing.
At the request of repair stations and balloon owners, the Balloon Repair and Maintenance Association (BRMA) made inquiries of the balloon manufacturer; the builder was uncooperative. Next BRMA contacted different departments of the FAA to ascertain what steps can be taken to correct a potential safety problem when the aircraft manufacturer is unwilling to help.
BRMA found two distinctly different attitudes among FAA personnel. There were those who said until a failure, or failures, are documented, FAA employees are not required to, and will not, do anything (The "tombstone syndrome"-can't correct a problem until enough tombstones have resulted.). Since the primary responsibility of the FAA, as mandated by Congress, is to promote the safety of persons and property on the ground, and passengers in the air, this "tombstone" attitude is unconscionable. The other, safety-conscious, consumer-oriented attitude found among FAA personnel is that a perceived safety problem should be fixed before it results in injuries or deaths. In the situation of an inappropriate product being used on an aircraft, these FAA inspectors state that the fact the manufacturer of the product says it is an unsuitable use is enough to demand change. As one inspector said, "What more evidence do you want?"
Responsible balloon manufacturers will respond to a problem before the FAA forces them to take action. In a recent letter to owners and repair stations, Mark West, President of Aerostar, stated his company's philosophy regarding the issuance of Service Bulletins. When a confirmed potentially dangerous condition is brought to Aerostar's attention they determine a course of action, and issue a Service Bulletin; they provide materials at their cost and pay for direct expenses incurred in complying with the Service Bulletin. Cameron US has a similar policy and promptly responds to inquiry.
What should you (an owner/operator or pilot) do if you believe an unsafe condition exits on your balloon? First talk to your repair person. Your problem may have already been identified and an immediate solution may be available. If not, your repair person should confer with the balloon manufacturer who may be able to prescribe a solution right away. If the manufacturer's response is not satisfactory, your repair person should file a Malfunction and Defect Report, or Service Difficulty Report, with the FAA. FAA response to these reports is varied: sometimes they confer with the manufacturer, sometimes they issue an Alert, sometimes they do nothing. It's possible that you and your repair facility will be pleased with instant response from the FAA, but it's also possible you will end up frustrated and angry.
Who's responsible if a problem is not corrected and something goes wrong? The owner/operator is responsible for an aircraft's maintenance. The repair person or repair facility, has a responsibility to report unsafe conditions to the owner. The manufacturer, once informed of an unsafe condition, bears responsibility if the condition is not corrected. The FAA, with a mandate from Congress to protect persons and property on the ground, could bear some responsibility if an unsafe condition was reported and not corrected. In a court of law, who would be held accountable? Since, with exceptions, you can't sue the Federal Government, defendants could be held accountable in direct proportion to the amount of money a plaintiff might be able to win from each. In the case of a lawsuit, a court, probably not qualified in aviation, would decide who was negligent.
According the Federal Aviation Regulations, the pilot is the last link in the chain. The Pilot-in-Command should refuse to fly an aircraft he or she believes to be unsafe.
A whole long string of do nothings can result in tragedy in the air, on the ground, or in court.
