NMUSAF Asserts Ownership Over CAF P-82

[JDK]

This is not just a CAF issue, but should be of concern to all owners and operators of warbird aircraft.

...in the US, presumably. Meanwhile, elsewhere in our story...

[k5083]

All in all I'm very impressed with the CAF's willingnes to publicly discuss this issue. It shows an openness not normally seen in organizations of that nature.

I agree with that. It is refreshing.

I am not going to respond to the excellent posts by Doug and Shep because I am not their lawyer, it would be inappropriate for me to give them advice, and nothing I've said on this thread should be construed as such. I have made available and tried to interpret objectively the publicly available court documents for this community in the hope of informing the discussion and helping keep it focused on the disputed issues. It has been an excellent discussion and I hope it continues.

I will say that I agree with Shep that the CAF appears to be ably represented and its briefs were well written. I don't know your lawyers personally, but clearly they know their stuff.

I'm not in a position to handicap the parties' chances on appeal and I haven't even figured out whom I want to win. Still, on principle, I wish the CAF and its attorneys the best of luck.

August

[John Beyl]

[quote="John Beyl

Doug,

No third degree with bright lights, dripping water and thumb screws just curiosity but could you please clarify for me, this statement you wrote:

“…We have a clear title and a document from the Air Force that transferred the airplane to us without restrictions that post-dates the restricted donation.)”

I have to assume this document surfaced after the judge heard both sides of the argument and had adjourned to make his decision or else it would have been the piece of ‘Slam dunk’ documentation the CAF needed to retain ownership of the P-82. If it was known of at the time of the hearing, for heavens sake why was it not brought into evidence?

I would refer you to the oft quoted here law 101 phrase

We would agree that it is a slam dunk. My understanding is that the AF museum position is the person that granted the free and clear title 40 years ago was not authorized to do it.
I’m certainly not a lawyer but even to me none of the documentation presented on behalf of the CAF proved any kind of permanent ownership. They appear to be clear and unquestionable. One a statement of conditional donation, the other a release so the CAF could get it licensed and fly it. What am I missing?

In your fifth point you wrote: “…Since that time there has been serious interest in undertaking the restoration on behalf of the CAF by parties with the resources to do it.” That seems to disagree with what the Old Shep wrote earlier. In one of his posts he mentioned that the party once interested in paying to restore the aircraft has withdrawn their original offer to do so. If this is true, and if the CAF were to retain ownership of the aircraft, what would be its future with the organization?

There are other interested and capable parties.

The P-82 has always been a favorite of mine. That said I would like to see the CAF retain ownership of the airplane and eventually return it to flying status and operate it.

Thanks,
John

We have a clear title from the FAA with no restrictions. We (the board) believed we owned the airplane outright when we did the trade, and had no idea about either the conditional donation or the subsequent unconditional donation. Again, my understanding is that the AF museum doesn't dispute we have a unconditional donation, only that the person who issued that letter was not authorized to do it.

Bear in mind this all happened 40 years ago. It goes without saying that none of us (the current board) were invovled in the organization when this deal was made.[/quote]

Doug,

Thanks for responding. You’ve cleared up a very critical point that I was not aware of, that the USAF agrees the existing paperwork does indeed grant the CAF clear title to the aircraft however, it is their contention that it was issued illegally by one of their “agents” 40 years ago. I now agree it’s a case worth going to the mat over. It’s also very nice to hear that if the CAF prevails, there is strong interest from a financial backer to put it back to flying status. Very nice indeed!

John

[k5083]

You’ve cleared up a very critical point that I was not aware of, that the USAF agrees the existing paperwork does indeed grant the CAF clear title to the aircraft however, it is their contention that it was issued illegally by one of their “agents” 40 years ago.

John, I caution you not to accept one side's interpretation of the opposing side's position. The above is not what the USAF says in its briefs.

August

[tulsaboy]

August, would you not also agree, considering the above claim, that the FAA does NOT issue a title, and thus there cannot be a "clear title from the FAA with no restrictions."

All of the FAA registration documents I've ever seen or fill out quite clearly state that they are passing no judgment on who has actual clear (or clouded) title to a particular aircraft, they are merely acknowledging that whoever has chosen to register the aircraft and has paid the fees has done so in a way that meets the FAA requirements. I don't think an FAA registration will mean squat to a court, other than the fact that the CAF sure believed that it owned the F-82.

kevin

[k5083]

Kevin, I'm not an FAA lawyer and don't know the answer to that. All I know is that the district court held:

the FAA Registration Certificate does not establish anything in a dispute between two parties claiming ownership of an aircraft. 49 U.S.C. § 44103(c) (an FAA certificate of registration is “not evidence of ownership of an aircraft in a proceeding in which ownership is or may be in issue”).

(Page 19 of opinion).

I don't know whether that is correct, although I checked the statute and that language is there. No doubt many non-lawyers here have experience with this.

Incidentally, the court's findings on the document supposedly conferring unconditional title, which pretty much tracks the USAF's position, is at pages 21-22. Again, I'm not stating any view whether it is correct, just trying to clarify the positions.

August

[davegnz]

What else can the AFM "reclaim" because of improper disposal:

Several ex-Yugoslavian AF F-47 (ex-MAP aircraft)
Several ex-Peru F-47 (again ex-MAP aircraft)
Numerous F-51 from various South American countries (ex-MAP aircraft)
Soviet AF P-39's, P-63's, P-40's, A-20 (ex- Lend-Lease aircraft)
Numerous aircraft recoved from PNG in the 1970's-90's
All the surviving Indian AF B-24's (ex-RAF Lend Lease aircraft)

The AF sent many aircraft to numerous countries over the years with the understanding that they were to be returned or destroyed. Now the USAF wants their aircraft back so they can sit on a pole someplace [like the McGuire P-38] or left to rot (Like the B-17F) and all the ex-tanker B-17 etc...

* * *

If I was Planes of Fame museum, I might be a little worried - when the museum was founded in the early 1960's the AF 'donated' a lot of aircraft for display - some of which has been sold and traded over the years

* * *

What's next - is the AF going to reclaim Glacier Girl?

Sounds like the AFM is going the route of NAM - we abandon nothing and we want it all back (I am surprised that all the South American F4U's have not been reclaimed by the NAM) !!

Of course this could get interesting - who would win in a fight over B-17 Swamp Ghost - USAFM vs PNG in a 10 round - no holds bar fight

[AirJimL2]

that the FAA does NOT issue a title, and thus there cannot be a "clear title from the FAA with no restrictions."

All of the FAA registration documents I've ever seen or fill out quite clearly state that they are passing no judgment on who has actual clear (or clouded) title to a particular aircraft

Kevin,

That is indeed correct. August quoted the correct reference to the law. Here it is in full:

49 U.S.C. § 44103

(c) Certificates as Evidence.— A certificate of registration issued under this section is—
(1) conclusive evidence of the nationality of an aircraft for international purposes, but not conclusive evidence in a proceeding under the laws of the United States; and
(2) not evidence of ownership of an aircraft in a proceeding in which ownership is or may be in issue.

Legally there is no such thing as a "clear title from the FAA with no restrictions." As to the rest of this issue, I will just quote August

I am not going to respond to the excellent posts by Doug and Shep because I am not their lawyer, it would be inappropriate for me to give them advice, and nothing I've said on this thread should be construed as such. I have made available and tried to interpret objectively the publicly available court documents for this community in the hope of informing the discussion and helping keep it focused on the disputed issues. It has been an excellent discussion and I hope it continues.

I will say that I agree with Shep that the CAF appears to be ably represented and its briefs were well written. I don't know your lawyers personally, but clearly they know their stuff.

And echo everything said above.

When this was first made public, I was of the opinion that the CAF and the USAF should work together to settle this matter and not allow it to be interjected into the court of public opinion. Maybe that was the rational attorney mind talking. One or two comments by DougR infer that settlement isn't a reasonable hope. That worries me for reasons I've mentioned in this thread. That being said, my heart does hope the CAF will prevail and we will see the Twin Mustang in the air someday in the future.

Jim

[CAPFlyer]

One thing I have to ask on this issue because it arises from personal involvement in the tasks required around importing and registering an aircraft in the US and my understanding of it.

Part of that understanding is that when a request for registration is made to the FAA, a proof of clear title must be provided to the FAA and they perform their own title search to identify if there are any leins or conditions against a title of the aircraft. If there is any question, then the FAA reserves the right to deny the registration application and issuance of any documents relating to airworthiness of the aircraft. Now, while the regs and law say that the issuance of a registration is not "proof of ownership", can it not be inferred at the same time that the issuance of registration is an acceptance by the FAA that the person or group applying for the registration is doing so in good faith and with all belief that they are legally in control and authorized to operate the aircraft?

I guess what I'm trying to say is that my understanding was that the FAA's issuance of a registration was confirmation of ownership, not the establishing of it. The Code may say that it can't be used to establish ownership, but because of the requirements to obtain the registration, it would infer that issuance of the registration is confirmation. For it to be otherwise would appear that what the FAA is saying is that as long as you fill out the right form and provide the right piece of paper, you can get the registration on any aircraft and then operate that aircraft as if it's yours. That's problematic for me because it implies that there is no positive control in place to ensure that illegal operation of an aircraft isn't undertaken and in direct violation of the FAA's charter.

[AirJimL2]

CAPFlyer,

Look at the law this way. After you do your due diligence and the FAA does theirs, if the FAA allows you register the airplane and later there arises a dispute over ownership...hum...does this sound familiar?...the FAA isn't on the hook for their mistake and you can't use the FAA registration as proof of ownership in court. It is really just a get out of jail/liability free card for the FAA.

Anyone know if the FAA did title checks back in the day when the airplane at issue was registered? I honestly have no idea. Plus it would not surprise me in the least, that if same documents the CAF used all those years ago were provided to the FAA today to register an aircraft, that the FAA very well might not register the airplane. Things change as time marches on.

Jim

[RyanShort1]

Guys, to put this simply, the CAF has said that they're going to appeal, and I'm certain that more is going to happen in the near future. Perhaps the best thing for those of us not directly involved is to wait for the CAF's next recommendation. Having read through the brief and talking to at least one credible source I'm aware of, this DOES likely have implications for other aircraft (possibly beyond the CAF) and we ought to be careful about speculation, emotions, and such...
I think that the WIX warning Ryan K. issued last night should (and probably does) apply to this subject as well. It needs discussion, and probably action in the future, but if discussion is not carried out with discretion, it could be counter-productive. From the thread that got pulled recently, it should be obvious to folks that people who would never post here, do read things posted here.

Ryan

[Mudge]

OK troops...I'm outta' here. This has gotten WWAAAYY too convoluted for my simple reasoning capabilities.

I hope the CAF gets to keep the a/c. If not, well...that's not the end of civilization as we know it either.

Mudge the simpleton

Last edited by Mudge on Sun Oct 05, 2008 9:40 am, edited 1 time in total.

[bdk]

If I was Planes of Fame museum, I might be a little worried - when the museum was founded in the early 1960's the AF 'donated' a lot of aircraft for display - some of which has been sold and traded over the years.

Caveats: I do not represent POF and the statements below are hearsay...

I believe there was an issue with the POF B-17 that was resolved with the USAF. Upon that resolution, POF initiated it's campaign a few years back to collect funds to restore the aircraft to flight.

POF did return the F-102 it had on display for a number of years because they could not obtain title to it.

[mustangdriver]

If I was Planes of Fame museum, I might be a little worried - when the museum was founded in the early 1960's the AF 'donated' a lot of aircraft for display - some of which has been sold and traded over the years.

Caveats: I do not represent POF and the statements below are hearsay...

I believe there was an issue with the POF B-17 that was resolved with the USAF. Upon that resolution, POF initiated it's campaign a few years back to collect funds to restore the aircraft to flight.

POF did return the F-102 it had on display for a number of years because they could not obtain title to it.

The Planes of Fame B-17 is 100% owned by the POF.

[Miscue]

DougR.
Your post that stated there was no viable interest in the restoration of the P-82, man, you are so wrong. The P-82 Squadron had just moved the aircraft to southern CA and had both the manpower and funding to start some serious restoration. The CAF HQ did the trade deal in an underhanded blindsiding of the unit that supported the aircraft. Not only did the General Membership not know of the trade, but the P-82 Squadron weren't informed of the trade either until after the fact.
Bottom line is the CAF should have never traded the aircraft away without researching a little bit of the aircraft history with the CAF. Any of the "oldtimer" aircraft CAF members from Mercedes or Harlingen could have informed the CAF about this.