The Captain absolutely is at fault. He signed for the aircraft under FAR121, accepting that the aircraft, weather etc was satisfactory for the proposed route.
One of a Captains final actions before push is to inspect the maintenance status of the aircraft as indicated by the logbook, ensuring amongst other things, that an ETOPS predeparture inspection has been conducted.
I was on the N Atlantic, non-ETOPS aircraft and non-ETOPS route but with skillfull, routine, geometric compass and Douglas Protractor, found ourselves ETOPS for 10 minutes. OK, 80 nm is nothing but with my history of historic abuse & persecution, I volunteered the info & got a right royal ticking off.
A colleague of mine flew between two Asian cities on an overwater route that was normally non-ETOPS (you know where this one is going
). Shortly before departure he was given new paperwork with an alternate routing further offshore to avoid a large area of embedded thunderstorms.
Everything looked good and off they went. They were on airways, in Class II airspace for a while, overwater qualified, extra fuel for the weather, no problem.
On arrival, the captain took a closer look at the route (it was in the paper chart days) and it looked like they were in the ETOPS area of operation for a few minutes.
For the three ETOPS airlines I've worked for these areas were defined by hard mileages in the OPSPEC's, not estimated times corrected for winds.
And, in some 'theaters', the 60 minute mileage applies, in others (areas of benign neglect
) you can go to 75 minutes before you need ETOPS on a twin.
And, of course, the mileages themselves vary depending on what part of the world you are operating in.
Anyway, to help avoid the possibility of a future miscue in this situation, my colleague dutifully wrote an extensive report with recommendations to change the routine dispatch of this sector to ETOPS, at least during the monsoon season. After all, the aircraft, crews, dispatchers and maintenance were already ETOPS qualified.
He also filed an ASAP report and maybe a NASA form, I'm not sure.
Needless to say, the company self-reported the incident to the feds. He got a letter of investigation from the FAA and an 'informal' company ops hearing. ASAP said that since he signed the dispatch release and accepted the flight plan, it was a 'willful violation' and there was no immunity for the report. After a few stressful months, he and the FO were given a half day of remedial ground school with a couple of hours in the sim and the matter was closed.
My friend hasn't filed any of those reports since then.