LAX96LA058

After a private pilot and a flight instructor (CFI) took off in a Cessna 152, they reported a rough running engine. They attempted to return to the airport, but did not have sufficient altitude and crash-landed on an abandoned golf course. After landing, the private pilot told police that he was the pilot-in-command (PIC) and that he had not run out of fuel. A check of the fuel tanks showed about 2 inches in the left tank and none in the right tank. The private pilot told the operator that the CFI took over and made the forced landing, which the CFI confirmed. Recovery personnel drained between 7 and 8 gallons of fuel from the airplane before removing it from the golf course. A postaccident run of the engine met all the manufacturer's established parameters. The aircraft and engine logbooks were reviewed, and no discrepancies were found. The temperature and dew point were 62 and 45 degrees F, respectively. According to icing probability charts, conditions were conducive for carburetor ice; however, carburetor ice was not verified.

On November 27, 1995, about 1643 hours Pacific standard time, a Cessna 152, N6349M, made a forced landing after takeoff from Hayward Air Terminal, Hayward, California. The aircraft sustained substantial damage; however, neither the certificated flight instructor nor the certificated private pilot were injured. The aircraft was being operated by Nice Air, San Jose, California, as a personal flight when the accident occurred. The flight originated in San Jose. Visual meteorological conditions prevailed at the time and no flight plan had been filed.

A few minutes after takeoff, the Hayward tower received a call from a pilot reporting a rough running engine. He attempted to return to the airport, but did not have sufficient altitude to reach the runway. The pilot executed a forced landing on the abandoned Sky West golf course southeast of the airport. On touchdown, the nose gear collapsed, the forward cowling was crushed, and the main landing gear were damaged.

A helicopter unit from the East Bay Regional Parks Police arrived at the accident site about 5 to 6 minutes after being notified of an aircraft down by the Hayward tower. Upon their arrival on scene, both the chief pilot and another police pilot reported recognizing one of the occupants as a San Jose Police Department sergeant whom they had met previously. They recognized the name of the second occupant who they knew to be employed as a police helicopter pilot for the San Jose Police Department. The chief pilot asked who had been pilot-in-command. The sergeant, who is a private pilot, replied that he had been. The sergeant was then asked if he had run out of gas to which he replied he had not. The chief pilot suggested to both occupants that a visual inspection of the aircraft's fuel tanks be made in order to verify fuel quantity while there were witnesses present to observe the results.

The chief pilot stated that the aircraft was leveled from its nose low, left wing down position. He saw about 2 inches of liquid on a stick after it was inserted and withdrawn from the left tank through the filler neck. The same procedure was applied to the right tank which resulted in the withdrawal of a completely dry stick. He also recalled being told by one of the two occupants that the engine had been shut down prior to landing. The manufacturer reported that an open line connects both main tanks and allows a gravity transfer to equalize fuel levels if the wings are level or to transfer to the lower tank if the aircraft is wing low.

The chief pilot also reported seeing some liquid run out of the engine fuel sump when it was checked. (A memorandum of a telephone conversation with both pilots of the East Bay Regional Parks Police is appended to this report.)

The carburetor was crushed; however, there was no fuel staining on the surrounding aircraft structure. The sergeant told the officers that their total flight time had been 2 hours and 30 minutes since their original takeoff from San Jose. Both he and the passenger (who was later identified as the sergeant's flight instructor by the operator) estimated that they had between 1/3 to 1/2 of their fuel remaining when they departed Hayward. (The Hayward Police Department report is appended to this report.)

About 1700 on the evening of the accident, the Hayward police advised the Safety Board investigator that they were preparing to leave the accident site and that manpower was not available to provide continuous security for the aircraft. The investigator told the officer that the Safety Board was not taking custody of the wreckage and suggested that the owner be notified as soon as possible. The officer replied that both occupants of the aircraft had already left the scene and their whereabouts were unknown at that time.

The Teller Group was assigned as the adjuster at about 1300 on November 28, 1995, the day following the accident. The adjuster contacted the operator and arranged for one of his employees (flight instructor) to provide security at the site until he was able to arrive later that afternoon. The adjuster confirmed for investigators that security had been available on the site from about 1300 on the day after the accident until about 1630 later that afternoon when he actually arrived. He also told investigators that there had not been any claims filed for any missing property. He stated that he had not requested or assigned any other security service, nor had he been billed for any other security services arising from this accident. There was no evidence to show the aircraft had been secured between about 1700 on the day of the accident until 1300 on the following day.

The passenger (instructor) and sergeant (private pilot) spoke with the operator after returning to San Jose. The operator told the FAA inspector that the instructor told him that they lost total engine power about 3 minutes after takeoff from the Hayward airport. The private pilot told him that after he performed the in-flight emergency check list procedures, the passenger (instructor) took over and completed the forced landing. The passenger confirmed that he taken the controls and made a forced landing on the Sky West golf course. The operator asked both pilots what they thought happened and both replied that the engine had just died. When asked if they bought fuel during their flight they both said they had not. (The operator's reconstruction of this conversation is appended to this accident report.)

The sergeant contended that he was the pilot and that the instructor was a passenger. The operator, however, stated that the aircraft had been rented to the flight instructor and that private pilot would not have been allowed to rent the aircraft anyway since he was not a member of the flying club which is a prerequisite to renting an aircraft.

In response to the Safety Board's request for a completed pilot report, the instructor sent the investigator a letter referencing the Safety Board's request, and indicating that he was not the pilot-in-command per Title 49 Code of Federal Regulations 830, stating that passengers are not required to file this report. He suggested that the Safety Board investigator contact the FAA and update the ongoing accident investigation. When contacted, the FAA inspector (coordinator) was not aware of the flight instructor's letter to the Safety Board, nor did she concur with his determination as to who was pilot-in-command. Conversely, the inspector informed the Safety Board investigator that, according to her understanding of the FAR's, the flight instructor should be considered to be the pilot-in-command for, among other things, the fact that he took the controls during the in-flight emergency, demonstrating his pilot-in-command authority.

The investigator attempted to follow up with the instructor at his home and through his place of employment. His supervisor confirmed that the instructor was no longer living at the address he had last reported to the FAA. The supervisor further advised that the instructor was currently out of state on active military orders and that while he had not provided his department with a telephone number or address where he could be contacted, he did call in periodically to check for messages. A second request was sent in care of his work address to be forwarded to him after he had been informed of its arrival. As of the completion of this accident report, the investigator has not received a completed pilot report from the instructor. As of completion of this report, the investigator still has no current address, telephone number, and his whereabouts remain unknown. (His supervisor did not provide a military address or specific military installation.)

In subsequent communications between the Safety Board investigator and FAA inspectors, the inspectors reported that the flight instructor acknowledged receiving both Safety Board requests f