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Your Public Safety Drone May Not Be Safe for Flight and Attorneys Might Just Eat You for Lunch

Your Public Safety Drone May Not Be Safe for Flight and Attorneys Might Just Eat You for Lunch

I’ve launched a website for all pilots to report issues they may have experienced in drone flight. Please submit any reports at ReportDroneAccident.com.

This is a very hard post to write. I already know many people are going to skewer me and call me an idiot for sharing what I have found, but that doesn’t make the facts wrong.

All I ask is that you reserve judgment until you read all the information. It has taken me months to get to this point and a lot of research and discussions with the FAA, NTSB, and other aviation professionals. What you are about to read are the facts as I know them. Please do your own authoritative research.

And as always, all I can do is give you the facts and allow you to reach your own conclusions.

Quick Facts

  • The UAS, UAV, or drones we fly in public safety have never been found or tested to be safe.
  • The drone industry encouraged and counted on a rapid process to market that skipped the historic FAA process of determining if an aircraft is sound, safe, or airworthy.
  • During the process of Part 107 rulemaking the commentary stated, “the FAA has determined that airworthiness certification for small UAS operating within the limits set by part 107 is unnecessary” and “The proposed requirements are appropriate to the type of risk posed by small UAS operating under part 107.”
  • At the time of rulemaking the FAA was confident on the operation of unmanned aircraft as long as they did not fly over people or beyond visual line of sight. It appears the FAA was focused on injury to people by drones but not on if the drones had defects or issues that result in damage. We’ve seen drones cause fires, catch fire, fall out of the sky, suddenly land, flyaway, etc.
  • There is not a pubic or transparent source of information on drone accidents or defects. The pilot is required to make the determination the drone is safe to fly without knowing what issues have happened or are known. Yet it appears at least DJI has an internal form for recording accidents. An example appears later in this post.
  • The UAS pilot bears the ultimate responsibility to determine if the aircraft is safe to fly without any information to know or understand the manufacturer known risks.
  • Boeing was roundly criticized over the crashes of the 737 MAX aircraft and the entire fleet of 737 Max aircraft is grounded until they can be determined to be safe.
  • None of the issues I will raise below are a problem until they are.
  • DJI has dealt with lawsuits for various reasons.

At the bottom of this post you can find some drone accident reports from readers that I received as a result of publishing this article.

My Journey to This Post All Began With My Drone Accident

In the early morning hours of April 25, 2020, I was flying the Fire Department drone and was dispatched to assist the Police Department in searching for a missing autistic child.

During the second flight of the search, the DJI Matrice 210 owned by the Fire Department and flown by the Chief Pilot entered into an autoland situation and began an uncontrolled descent over a row of townhomes and near police officers. Limited lateral control was still possible with only seconds to land.

This incident occurred at a time when the aircraft was not within Visual Line of Sight (VLOS) and was technically outside the approved FAA flight envelope since a waiver for flight Beyond Visual Line of Sight (BVLOS) is not held. Nor is a BVLOS waiver practical, given its limitations.

The pilot assumed the liability and extended the flight into BVLOS given the fact it was early in the morning; almost no people were observed out except for public safety personnel on the scene, and the child was still missing.

Having never had a similar situation in the past, I have learned from this experience, I made a mistake and never should have flown outside the line of sight of the UAS and the ground below, no matter what the reasoning was. I have since learned that current BVLOS waivers appear to not be satisfactory for rapid pubic safety flying since they are for a defined area and require 24-hour NOTAM notice.

Here is an excerpt from my flight debrief report.

“Approximately six minutes into the second flight, the aircraft showed about 18 minutes of flight time remaining. I observed I had lost control of the thermal camera gimbal and could not move it from a 55 degree down angle. I was at the furthermost most point on one of the grid arms and hovering over a possible target I was going to have visually examined. I felt that the target may have been a street light with the head of the light under or in the trees but it may have also been a person sitting under a tree.

Without warning the aircraft gave me a battery voltage error and a statement it was landing immediately. See the video at 6:17. I was unable to keep the aircraft in the air, and the most I could do was guide the aircraft to a Final Termination Point (FTP) and get the aircraft to the ground without injuring anyone.

Without the ability to move the thermal camera, I was left with few options. I could see what might have been an open field in front of me with some trees nearby. There was what appeared to be one of the primary streets into the neighborhood in front of me, but I had no idea of any traffic approaching on that road or trees below me. I turned to the left and spotted one of the townhome parking lots that was a dead end. I attempted to keep the aircraft in the air to look for any other FTPs, but the aircraft continued descending, and I received a message that it only had seconds of flight time remaining. I decided to put the aircraft down in the townhome parking area and began directionally controlling the aircraft during an uncontrolled descent to what I felt was a safe landing area considering I had no camera gimbal control. Police Department officers on the scene said the aircraft passed close over the roof of one row of townhomes and landed in the center of the dead-end street. ”

At the time, the conclusion of the debrief was, “Given the fact the cause of this aircraft error is unknown, I would advise that it not be flown beyond line of sight nor over people or extended wooded areas until the root cause of the error can be determined. Otherwise, the next time it could wind up lost in the woods, heavily damaged, or injure someone on the ground. ”

Following the loss of control incident, the pilot was put in touch with engineering contacts at DJI. Flight data logs and DAT files were downloaded from the aircraft and provided to DJI for analysis. After multiple emails over two months, DJI has been unwilling or unable to determine what caused this incident. DJI engineers have also not answered if the aircraft could be returned to them for inspection and a determination it is safe to fly.

Internal Investigation

The pilot conducted an inquiry attempting to identify the cause of the accidental autoland in hopes of identifying the issue and allowing the aircraft to continue to be operational.

This investigation uncovered the following facts:

The flight data logs do show a general warning of a minor voltage deviation in one cell of one battery on the accident flight. However, in looking through previous flights, there are other incidents when the voltage was reported to have more significant differences, but no autoland was triggered. No identifiable cause was found.

While the controller displayed a voltage warning message at the time, no such message appears in the flight data logs. Messages do appear in previous flights without an autoland situation.

There is no history of previous flights when an uncontrolled autoland was triggered during BVLOS flight.

There was no defect noted prior to flight.

The aircraft is well maintained and cared for.

The manufacturer, DJI, has a record of other incidents and/or accidents but is not required to disclose those. Any cause of other similar events is not public knowledge nor accessible.

The National Transportation Safety Board (NTSB) responsible for aviation accident investigations has reports filed on drone accidents but does not currently release data on those incidents and there are no public accident investigations of those incidents. In conversations with the NTSB, the pilot was told that a report of the accident could be submitted, even though it was not required, and information on other similar situations could be shared, but the pilot would be prohibited from sharing that information with anyone else.

Federal Aviation Regulations (FAR) cover the licensed operator of the aircraft. Relevant and core regulations covering this incident are:

§ 91.3 Responsibility and authority of the pilot in command.
The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.

§ 91.7 Civil aircraft airworthiness.
(a) No person may operate a civil aircraft unless it is in an airworthy condition.

(b) The pilot in command of a civil aircraft is responsible for determining whether that aircraft is in condition for safe flight. The pilot in command shall discontinue the flight when unairworthy mechanical, electrical, or structural conditions occur.

§ 91.13 Careless or reckless operation.
(a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.

§ 107.15 Condition for safe operation.
(a) No person may operate a civil small unmanned aircraft system unless it is in a condition for safe operation. Prior to each flight, the remote pilot in command must check the small unmanned aircraft system to determine whether it is in a condition for safe operation.
(b) No person may continue flight of the small unmanned aircraft when he or she knows or has reason to know that the small unmanned aircraft system is no longer in a condition for safe operation.

§ 107.19 Remote pilot in command.
(b) The remote pilot in command is directly responsible for and is the final authority as to the operation of the small unmanned aircraft system.
(c) The remote pilot in command must ensure that the small unmanned aircraft will pose no undue hazard to other people, other aircraft, or other property in the event of a loss of control of the aircraft for any reason.

DJI Appears to Say Proving Airworthiness is Not a Goal

One response I received said, “A certification scheme for small drones along the lines of what airplanes and helicopters endure would put incredible new burdens on drone manufacturers. The cost of a drone would skyrocket. The ease of innovating something new and exciting would be curtailed. The rapid development pace you’ve seen for the last decade – what makes this industry so exciting – would slow to a crawl. The practical impact of those changes means fewer people, businesses and governments using fewer, more expensive drones to protect workers, make operations more efficient and save lives. And for what benefit? Drones are the safest form of aviation the world has ever known.”

While I can certainly understand the point made, it misses the mark since as Part 107 and COA agencies we are responsible for complying with the Federal Aviation Regulations (FARs) and we don’t get a pass from them. And this position from manufacturers and the lack of FAA safety determination shifts all the liability to the pilot or agency to make the determination the aircraft is safe.

Maybe the FARs need to be updated but until then we have to deal with what they actually are today.

Another DJI senior representative told me, “The FAA determined when it implemented Part 107 that the risks of operating a small UAS can be mitigated simply by pilot knowledge testing and operational rules, with no need to undertake the complexity, cost, and time of airworthiness certification.” And, “So, airworthiness certification would serve little safety benefit but impose huge costs and burdens on the industry, increasing the cost of the products many times over, and impede the development of new products.”

I would beg to differ about what the FAA intentions were when it implemented Part 107 because the regulations specifically state the UAS, UAV, or drone has to be in a condition for safe operation and then the FAA goes on multiple times over history to describe what that status is.

Consensus Safety Standards

Under the FAA Reauthorization Act of 2018, a new concept was introduced in an attempt to promote future drone safety. The idea of consensus safety standards is to establish a process for “accepting risk-based consensus safety standards related to the design, production, and modification of small unmanned aircraft systems.”

Details of Section 44805 Consensus Safety Standards can be found here. This appears to be a work in progress.A search of the FAA website only found this one document.

At this time I don’t have any idea what the safety standards are or will be. The process that I don’t think is fully implemented yet still does not appear to provide for notification to pilots of issues. It says, “the manufacturer will monitor safety-of-flight issues and take action to ensure it meets the consensus safety standards identified in paragraph (1) and report these issues and subsequent actions to the Administrator.”

Will those actions be notifications, recalls, or Service Bulletins, it’s not clear.

What is Safe Operation?

The FAA appears to have a wide idea of what safe operation is. It ranges from comprehensive testing to a kind of you figure it out strategy.

The FARs appear to make it clear that the pilot is responsible for determining if the aircraft is safe to fly. But here lies a core issue uncovered during this investigation.

Typically the FAA determines that an aircraft is safe for a flight when it “conforms to its type certificate and, after inspection, is in condition for safe operation.” Here is an FAA legal interpretation about what is safe operation.

However, unmanned aircraft do not have type certificates issued and are not evaluated for airworthiness before being sold to the general public. Because no airworthiness certification is issued, the FAA has not determined they are safe to fly. Subsequently, the pilot can’t make a factual determination that the aircraft is prepared for “safe operation.”

The FAA definition of airworthy is “An aircraft with a type certificate (TC) is airworthy when it conforms to its U.S. TC and is in a condition for safe operation. For the purpose of this order, a non-type-certificated aircraft is airworthy when it is in a condition for safe operation.”

So maybe a type certificate is not required for safe operation. The FAA says that to determine that an aircraft is in a condition for safe operation, the following must occur, “The FAA inspector or authorized Representative of the Administrator will make an initial determination as to the overall condition of the aircraft. The aircraft items evaluated depend on information such as aircraft make, model, age, type, completeness of maintenance records of the aircraft, and the overall condition of the aircraft.” – Source

“FAA has never allowed companies to police themselves or self-certify their aircraft. With strict FAA oversight, delegation extends the rigor of the FAA certification process to other recognized professionals, thereby multiplying the technical expertise focused on assuring an aircraft meets FAA standards. The agency remains directly involved in the testing and certification of any new and novel features and technologies.” – Source

But do they when it comes to drones?

In the unmanned aircraft world, it almost appears manufacturer oversight is exactly what the FAA has shifted to since, in my opinion, when the FAA moved away from testing to determine safe operation it pushed what is safe to the manufacturers and industry, “the FAA encourages industry organizations to set voluntary standards for small UAS to further develop the industry.” – Source

But the Notice of Proposed Rule Making also says, “Such standards, however, would not relieve the remote pilot in command of his or her pre-flight responsibilities to determine that the system is in a condition for safe operation under §§ 107.15 and 107.49. That is because the remote pilot in command must ensure that the small UAS is in a condition for safe operation for each flight, which requires greater diligence as the small UAS ages.”

Privately members of the FAA and NTSB have said the lack of any study to determine airworthiness is a known issue and the aircraft are not confirmed safe to fly. Some of the comments I received from officials were, “I have investigated many PAO UAS mishaps in which the operator had absolutely no clue what responsibilities he took on.” And, “I can see your dilemma, and until the root cause of the issue is identified and corrected, I would be very reluctant to fly it, especially if I, like you, had other certificates at risk. I think I can guess how an ambulance-chasing lawyer would question the [Remote Piot].” And, “Since we are talking about a non-certified aircraft, there is nothing like the Service Difficulty Report database. I know it’s a pretty sophisticated machine, and in use by many high-end operators, but unfortunately, Part 107 has no airworthiness requirement.”

FAR 91.7(b) appears on face value to give the pilot some latitude in determining if the aircraft is in “condition for safe flight.”

However, the aviation legal standard book by Jetlaw addresses this issue directly. It says, “91.7(b) This section does not give the pilot in command the authority to overrule a mechanic’s determination that an aircraft is unairworthy. Flyability should not be equated with airworthiness. The term “airworthy” comprises two different concepts, both requisite to the airworthiness of an aircraft. These are (1) that the aircraft conforms to a type design approved under a type certificate or supplemental type certificate and to applicable Airworthiness Directives; and (2) that the aircraft must be in condition for safe operation.” – Jetlaw’s FAR/AIM Explained Page 246

And if an aircraft is not safe to fly how can it be airworthy?

Airworthiness Directives are FAA notifications about specific problems with certified aircraft. You can see examples of them here. Additionally certified aircraft manufacturers also send out Service Bulletins. “Service Bulletins (SB) are voluntary notices to aircraft operators from a manufacturer notifying them of a product improvement. Alert service bulletins are issued by the manufacturer when a condition exists that the manufacturer feels is a safety related item as opposed to just a product improvement.”

Again I turn to the information contained in the discussion prior to the adoption of Part 107 rules that said, “A number of commenters expressed concern that the proposed maintenance and inspection requirements were not stringent enough. ALPA and several individual commenters asserted that a preflight inspection conducted by the remote pilot is insufficient to ensure safe operation, as it would be conducted in the absence of defined criteria on which the owner/operator can base a decision about airworthiness. ALPA further stated that in the absence of airworthiness certification requirements combined with tamper-proof equipage that limits the vertical and lateral movement of unmanned aircraft, there is no way to ensure that a small UAS is safe and reliable.”

Additionally, “Several commenters suggested that more formal maintenance and inspection requirements should be imposed on manufacturers and operators. The NextGen Air Transportation Program at NC State University said “some statement of airworthiness from the manufacturer, a certified inspector, or system provider with a date evaluation should be a minimum requirement.” The commenter also said that the aircraft should be tested for airworthiness every 2 years. The State of Nevada, the Nevada Institute for Autonomous System, and the Nevada FAA-designated UAS Test Site, commenting jointly, asserted that a preflight inspection “clearly does not infer than an aircraft is airworthy.”

Boeing actually asked the FAA during the rule making phase to define exactly what “safe operation” is. The response was “In the context of preflight check and maintenance requirements, the FAA has concluded that “safe operation” pertains to mechanical reliability, and is predicated on overall condition of the entire unmanned aircraft and integral system equipment relative to wear and deterioration. Determinations made of the overall condition of the small UAS includes an evaluation based on the make, model, age, type and completeness of continued maintenance and inspections of the aircraft and associated system equipment making up the entire UAS.”

But without any transparency by manufacturers as to make, model, age, and maintenance or inspection procedures or accident reports then how can the pilot make an informed decision about the electrical, computational, reliability or control systems of the aircraft?

“One commenter stated that any remote pilot should lose his or her privileges under part 107 if found to be operating while in a condition that does not permit safe operation of the small UAS. Another commenter suggested that remote pilot certificates should be denied, suspended or revoked for committing an act prohibited by 14 CFR 91.17 or § 91.19.”

“The FAA agrees. Under this rule, if a person violates § 91.17 or § 91.19, the FAA can take enforcement action, which may result in the imposition of civil penalties or suspension or revocation of that person’s airman certificate.”

What You Are Supposed to be Doing Before Flight

Prior to every single flight the pilot is required to carry out an extensive inspection. AC 107.2 addresses this directly and says, “Even if the sUAS manufacturer has a written preflight inspection procedure, it is recommended that the remote PIC ensure that the following inspection items are incorporated into the preflight inspection procedure required by part 107 to help the remote PIC determine that the sUAS is in a condition for safe operation. The preflight inspection should include a visual or functional check of the following items:

  1. Visual condition inspection of the UAS components;
  2. Airframe structure (including undercarriage), all flight control surfaces, and linkages;
  3. Registration markings, for proper display and legibility;
  4. Moveable control surface(s), including airframe attachment point(s);
  5. Servo motor(s), including attachment point(s);
  6. Propulsion system, including powerplant(s), propeller(s), rotor(s), ducted fan(s), etc.;
  7. Verify all systems (e.g., aircraft and control unit) have an adequate energy supply for the intended operation and are functioning properly;
  8. Avionics, including control link transceiver, communication/navigation equipment, and antenna(s);
  9. Calibrate UAS compass prior to any flight;
  10. Control link transceiver, communication/navigation data link transceiver, and antenna(s);
  11. Display panel, if used, is functioning properly;
  12. Check ground support equipment, including takeoff and landing systems, for proper operation;
  13. Check that control link correct functionality is established between the aircraft and the CS;
  14. Check for correct movement of control surfaces using the CS;
  15. Check onboard navigation and communication data links;
  16. Check flight termination system, if installed;
  17. Check fuel for correct type and quantity;
  18. Check battery levels for the aircraft and CS;
  19. Check that any equipment, such as a camera, is securely attached;
  20. Verify communication with UAS and that the UAS has acquired GPS location from at least four satellites;
  21. Start the UAS propellers to inspect for any imbalance or irregular operation;
  22. Verify all controller operation for heading and altitude;
  23. If required by flight path walk through, verify any noted obstructions that may interfere with the UAS; and
  24. At a controlled low altitude, fly within range of any interference and recheck all controls and stability.

Cause of My Accident

The cause of the accident remains undetermined. Members of the FAA have provided advice and educated theories as to what may have led to the accidental autoland.

Contributing factors could include some sort of electromagnetic radio interference, an electrical anomaly on the aircraft itself, a manufacturing defect, or any number of issues.

At the current time, all we have are guesses. But let’s look at possible remedies.

An option would be to strictly limit the drone’s flight within VLOS where the pilot can see both the drone and the ground below it at all times. No flight over any people or property that may be damaged would be recommended. This will limit flight to an area only nearby the pilot.

One suggestion from the FAA is to replace all the batteries, test fly the aircraft and see if it happens again. If it does not occur on test flights, “then it is probably the battery.”

To replace our batteries, it would cost $5,590, and there is no guarantee it will fix the issue since the exact cause of the problem has not yet been factually determined.

Besides the FAA and DJI, the flight logs have also been shared with outside drone experts and expert companies. After review of the data, no cause of the accident has been identified by any of the experts.

And while the flight shows a minor variation in one cell of a battery during flight, the variation is minor and much larger variations were experienced in the past without an autolanding being triggered.

I contacted DJI general tech support since the engineers were unresponsive for a long period of time. They are busy people. An inquiry was submitted about sending the aircraft and batteries back for inspection and receiving some assurance that it is safe to fly. The cost of this inspection is not able to be determined in advance. There is no indication a safe to fly letter will be issued. The aircraft system, including the controller, must be sent to DJI for evaluation. If repairs are not authorized, then DJI states they may charge $65 per hour for the undetermined inspection time. Shipping will be expensive (It was $534 with insurance via UPS to get to DJI) since the aircraft system should be insured. However, DJI historically does not provide shipping insurance on return.

Since I did my accident report, DJI has responded and said this regarding a letter the drone was safe to fly, “We sincerely apologize that we can not offer this kind of letter. However, the drone will undergo rigorous flight tests and detection conducted by our engineers to guarantee that it is functioning normally before being sent back to you. Hope you can understand.”

If DJI can’t state the drone is safe to fly then how is the pilot at the landing zone going to make that determination?

Pilot and Department Liability Issues

At the present time, we know accidents have occurred with similar aircraft but drone manufacturers don’t share or report that information.

As another public safety pilot told me, “I think we all have one of these or a couple in our flight memory. I find the Matrice to be less and less reliable with every flight that goes by. We do not fly it over anything we care about, knowing full well it could drop out of the sky with no reason.”

We also know of another similar drone incident where the symptoms were similar but the report does not identify the make or model of the UAS involved.

In the located incident, another drone had a frozen camera and uncontrolled descent, the aircraft crashed into the ground causing a small fire.

“The first indication that an onboard system malfunction had occurred was that the camera sensor stopped working. This was closely followed by one of the spotters telling the remote pilot that the aircraft appeared to be descending. The UAV autopilot was no longer responsive to the active orbit over the cornfield inside the ZZZ area and the aircraft descended to the point of impact in a driveway. Minor ground damage, occurred during the post-crash fire.” – Source.

Some Other DJI Complaints and Allegations Filed in Federal Court

  • On December 2, 2019, DJI was sued for $220,000 in building damages after “the lithium ion battery provided with the drone by DJI was charging, using the DJI provided charger, in the Building, when the battery exploded, causing a fire, smoke and other damages to the Building and its contents.” – Source
  • On July 26, 2019, DJI was sued and the complaint alleged “A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing.” The complaint states “On July 28th, 2018 the plaintiff while performing the above contracted work at Limetree Bay Terminal in St. Croix, USVI, experienced the following incident resulting the destruction of the drone and the loss of the contracted work. The drone was set to perform a survey of the refinery using “Waypoint” technology. Waypoint GPS navigation allows a drone to fly on its own with its flying destination or points pre-planned and configured into the drone navigational software. The drone is supposed to rise vertically to the necessary altitude for proper imaging, then begin moving horizontally between the waypoints. After successful missions on the first day of the project, however on the second day of the project the drone did not rise vertically to the necessary mission prescribed altitude before moving horizontally. The drone rose and moved towards Waypoint 1 at a horizontal angle, colliding with a vessel at the refinery. After colliding with the vessel, the drone fell to the ground, where the battery burst into flames. This was not caused by user error, but was a hardware or software issue according to the defendants. Please see emails with DJI attached herein as Exhibit “6” Luckily, the refinery was not operating at this time, preventing a possible larger catastrophic event. The drone was damaged to the point of non-repair from colliding with the vessel, the ground, and subsequently the battery fire. Please see accident report attached herein as Exhibit “7”. The drone’s defects render it useless for its intended purpose(s) and petitioners would not have purchased said item from the defendant had the vices been known at the time of purchase.” The documents in this issue are the complaint, Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4, Exhibit 5, Exhibit 6, Exhibit 7, Exhibit 8, Exhibit 9.
  • In 2017, DJI was sued over a fatal firmware update. The complaint states, “Defendants knew or should have known that their firmware update had the direct and immediate effect of critically damaging the drones, however Defendants have refused to take any responsibility for the damage caused and have refused to repair or replace the damaged drones without charging fees for such repairs or replacements.” – Source
  • There is no way I am aware of for a pilot to affordably determine all the state and federal lawsuits filed, complaints, accident reports, arbitration agreements, or other issues submitted to drone manufacturers.

More on Safe Operation

Since drones fly without an airworthiness certificate issued by the FAA or a specific examination for safe operation, there does not appear to be any compliant way to determine if they can be determined to meet the requirement of “safe operation.”

There are no FAA-licensed mechanics, that I’m aware of, that inspect and approve a drone as airworthy and eligible to return to flight after an incident or issue.

Here is What a Smart Attorney Could Allege About You and Your Agency

You are flying along and for some reason, the drone hits a person or private property. This reason might be poor piloting, loss of control, autoland, motor failure, flyaway, etc. It doesn’t matter. Stuff happens.

If the attorney starts asking questions about the condition of the drone prior to flight and figures out the drone was never inspected or certified for safe operation, I bet they will go after the pilot and/or government authority for at least careless or reckless operation.

Attorney: Was the UAS airworthy and in a condition of safe operation prior to the accident?

You: Maybe?

Attorney: Why do you say maybe?

You: Well the drone was never tested for safety and I did not have the drone reviewed by an FAA inspector or authorized Representative of the Administrator to make an initial determination as to the overall condition of the aircraft for safe operation.

Attorney: But you are responsible for the safe operation of the drone. Correct?

You: According to the regulations I am.

The defendant is going to say the drone was safe to fly but it seems DJI has not conducted any FAA compliment testing or certification for airworthiness and may have a series of error or accident reports it has not disclosed, then what is your defense going to be?

But a commenter during Part 107 rulemaking seems to have captured this issue when he said, “The proposed rule is devoid of any substantive airworthiness assurances that §44104 requires and that should be in place if sUAS are to operate over property or persons. If there is no imposed airworthiness or maintenance regimen, then sUAS should not be flown over or near persons or property since there is no known, or at least objective, reliability test. Following the manufacturer’s maintenance program rings hollow since most do not have one, nor are they likely produce one since it is not required. What determines “safe for flight”? It is only after an accident or incident that determines the sUAS was not safe for flight. Consequently the FAA is shirking its responsibility of regulating to prevent accidents and abdicating that responsibility to the tort courts of what to impose on manufacturers and operator. A preflight inspection is not airworthiness.” – Source

And what do you think your insurance company is going to do if they determine the drone does not appear to comply with the FARs?

One drone insurance policy I read said it would cover the pilot or agency but “You shall comply with all air navigation and airworthiness orders rules regulations and other requirements issued by any competent authority affecting the safe operation of the Drone and shall ensure that (a) the Drone is airworthy at the commencement of each Flight.”

You might want to make sure your insurance policy does not mention airworthiness or require the drone to be in a condition for safe operation or your insurance carrier may not cover you.

Knowing what I’ve shared, how are you going to meet that requirement to be covered by insurance? You can contact me using the form below.

Summary

We factually know that the DJI Matrice 210 involved in the accident had some undetermined issue that caused it to autoland with limited control. There is no official data available from the manufacturer or the government to indicate how many others have experienced similar issues and what the cause was.

The pilot is directly responsible for the safe operation of the aircraft, but it appears that without an airworthiness certificate issued after a detailed safety inspection before being sold to the public, and a lack of awareness of known issues, it seems there is no way to determine what a safe operation condition actually is.

In the case of a subsequent accident, without a determination of the cause and rectification of the current accident, the concern is the aircraft is not safe for operation, and continued flight could be interpreted as a careless and reckless operation that would expose the department, government agency, and pilot to avoidable liability.

An FAA representative also advised, “I can’t advise you on what to do other than have a discussion with your legal and risk management people and see what they want to do. There may be case law already out there that they can research and they may want to ask for a legal interpretation or decide to pursue some other course of action.”

That is good advice.

An FAA legal interpretation would provide a clear course of action. However, it can take the FAA a year or more to respond to such a request.

It appears the UK Civil Aviation Authority had reached a similar understanding of the underlying issues presented here when it said:

“This accident demonstrates some of the issues associated with this emerging technology. New operators with little, or no, previous aviation experience are still developing procedures whilst operating small UAS which do not require certification due to their relatively low weight. The combination presents a challenge which operators, manufacturers and regulators will continually need to monitor and develop to ensure the safe operation of this expanding area of aviation.” – Source

Recommendation

Given all the facts as I know them, the prudent course of action for every pilot and government agency that fly’s drones not tested for safety might just be to talk to your government risk manager, your insurance agent, and or an aviation attorney to clearly understand what protections you have considering all of the responsibility for the condition of the aircraft and the safe operation of the aircraft has been shifted to the pilot.

Reader Accident Reports

  • “the XXXX rescue helicopter company in Switzerland, had a drone program, we were flying with 210 v1 dies, in April on a chimney fire intervention, after a reconnaissance of 5 ‘the drone was brought back on its launch zone, on standby, then after around 10 ‘, it got back in the air to take pictures of the scene, after 3s and at 2.50m flight, the drone is completely extinguished in flight, total damage except the useful loads. Three months later, with another v1, after a day of surveillance in the high mountains, close to 2900m, more than 6h of flight, with 85% of battery, the drone fell from the sky by 100m agl with xt and z30 , note that three times the xt is oriented down, to date it could not be recovered because the area is too dangerous. Since these two cases the management committee has decided to remove this drone service because the 210 are not reliable enough.”
  • “XXXX experienced a Matrice 210 falling out of the sky, but in our case, and my opinion, it was not DJI’s fault, it was pilot error. We made the mistake of hanging a device under the drone that blocked the sensors and prevented it from accurately determining its altitude and exhausted the batteries before we could get it on the ground.”
  • “Our [public safety] agency has had similar issues, except the aircraft initiated return to home protocol and did do without incident. The same battery set each time. Twice on a real world mission (returned to vendor after first incident, unable to reproduce error, determined to be airworthy by vendor), second time replaced malfunction battery set, third time was videotaped during testing and evaluation for error. Returning to vendor again next week.”
  • I remembered this video I had posted of a Matrice 210 crashing.
  • I also had this post on previous battery issues.

Update June 28, 2020

Over on my other site I just published a Safety Alert. See Fatality Calculations for Falling UAS. The warning includes calculations and data on the rate of fatalities for UAS failures leading to death on the ground.

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About Steve Rhode

Steve is an experienced and certificated UAS pilot and aircraft instrument rated pilot. He is also the Chief Pilot with the Wake Forest Fire Department and North Carolina Public Safety Drone Academy.

2 comments

  1. Christopher Cody

    Except for the fact that the FAA does not require an airworthiness certificate if you are complying with Part 107 (non governmental) and if you are government, you require a COA. “Airworthiness certification is necessary for operation of civil aircraft outside of 14 CFR Part 107 or without an exemption under the Special Authority for Certain Unmanned Systems (U.S.C. 44807).”

    https://www.faa.gov/uas/advanced_operations/certification

    UAS used in recreational operations, public operations and for operations conducted under Part 107 (including any waivers granted by FAA) or a section 44807 exemption are exempt from FAA’s aircraft airworthiness certification requirements.

    https://www.regulations.gov/document?D=FAA-2007-3330-0007

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