What does your AFM say in respect of selection of gear during the takeoff ? Commonly something along the lines of "retract gear three seconds after liftoff .. ?"
Boeing FCTM:
"Retract the landing gear AFTER a positive rate of climb is indicated on the altimeter."
It doesn't say how long after, just that you obviously shouldn't do it BEFORE positive rate of climb.
If the pilot wishes to operate in a manner significantly different to that specified in the AFM, which may/will compromise the certification basis
The aircraft is (obviously) certified to takeoff, fly and land with gear down.
I have to delay flap retraction to 4000 feet ... Engine failure procedure will have me retracting them at 1900 feet (1500 feet AGL). Should I in this case check the MEL for restrictions for flying with flaps U/S?
A facile argument. The takeoff will (or should) have been predicated on
(a) the AEO requirements, AND
(b) the OEI escape as appropriate.
You are contradicting yourself.
So in the flaps example:
(a) Is ok to check that I can takeoff with flaps extended and keeping them extended to 4000 feet in AEO, AND
(b) in case of OEI, I have checked that the flaps need to be retracted earlier (at 1900 feet).
In the case of the gear extended I can do exactly the same checks!:
(a) AEO/gear down, I met any procedural gradients required in my SID (usually 3.3 percent), AND
(b) in case of OEI, I have checked that the gear needs to be retracted earlier (after liftoff and positive rate of climb or when an engine fails, whichever is later).
Alternatively, one could pose the question .. how does the pilot, in the situation you posit, make good decisions whilst winging it on the fly ?
In the situation described, nothing is being winged on the fly. Both cases have been duly accounted for.
...the basis for an argument in court...
...your get-out-of-jail-free card...
...He/she certainly won't have an easy time of a subsequent Enquiry....
In the civilised world, I can only think of a few examples of any pilot having to go to court (usually acts of gross negligence - like e.g. Hapag-Lloyd Flight 3378).
Most incident investigations are there to help the pilots! And to understand and learn from what happened.
Yet I hear this kind of argument often. I NEVER worry about having to go to jail (let alone court), when doing my work as I never do acts of gross negligence.
Maybe something to think of, so we can stop this kind of argumentation.