Eye of Experience #30:
Who's Responsible?

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Want to start a raging argument during your next hangar-flying session? It's easy just ask two people to define

Eye Of ExperienceOne of the most difficult subjects an instructor ever has to teach is the awesome responsibility of being pilot in command (PIC) of an airplane carrying passengers. Federal Aviation Regulation (FAR) 1.1 says, "'Pilot in Command' means the pilot responsible for the operation and safety of an aircraft during flight time." And according to Part 91.3 (a), "The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft." This begs the question of the difference between acting as PIC and logging PIC time. Also please note that "flight time" as defined in FAR Part 1 means when you first board (or at least start up) an aircraft with the intention of flying it. This means that responsibility starts sooner than many people think. I've seen well trained pilots bury their heads in the cockpit, shout "Clear!" and turn the key to engage the starter without ever looking around outside to make sure the area is really clear.

Two Different Things

In order to really know what it is to be PIC, it is first vital to understand that acting as pilot-in-command and logging PIC time may be quite different things indeed. And when this is coupled with the fact that each FAA region interprets the regulations as it sees fit (and, worse still, many Flight Standards District Offices (FSDOs) have their own interpretations) and it's no wonder that confusion reigns. There can even be differences between the ways individual inspectors in the same FSDO read the regulations.

At every pilot education clinic, flight instructor clinic, examiner clinic, flight instructor meeting, and examiner meeting a substantial amount of discussion is devoted to the logging of flight time, yet the vast majority of attendees come away more confused than when they arrived. And these are the guys who are looked to as experts. Here's an example: After a half-day discussion of PIC rules at a recent CFI revalidation clinic, a controversy arose regarding a specific rule dealing with the logging of PIC time. During a break the speaker called the FAA's Flight Standards office in Washington to get a definitive ruling. Meanwhile a call was placed to the local FSDO with the same question. You guessed it two diametrically opposed answers were received, both from the FAA. What this tells us is that we'd better be in compliance with whatever local jurisdiction we happen to be in, or at least be in a position to defend ourselves based on some higher authority. If it is possible to interpret a regulation in more than one way (and it always is), you can be sure that sometime during your flying career you will be called upon to defend your position.

Much of the confusion about logging time, or other FARs for that matter, results from the fact that many of the rules grew up as a patchwork. First there is an event causing alarm within the FAA. Next comes a knee-jerk reaction to the event, along with an immediate call for a regulatory band-aid to cover up the problem and the aviation community is stuck with another regulation that may well cause more problems than it cures.

Student Pilots ...

Just who is in command when the student flies solo? It may very well depend on what a court has to say despite the fact that the FAA says the student was solo and acting as PIC under FAR 61.51(e)(4). In many court and NTSB administrative law cases resulting from an accident or incident that occurred while a student pilot was solo, the student's instructor was held to be in command even while sitting on the ground.

Once an individual holds a recreational or higher-grade pilot certificate, the FARs change to allow him or her to log as PIC that time he or she is manipulating the controls while receiving instruction. The regulations permit a pilot who is qualified to fly the airplane to log as PIC that time during which he is the "sole manipulator" of the controls while receiving dual instruction. In that case the advanced student logs his time as both dual and PIC. In other words, when a student pilot is solo, there is no PIC in the cockpit, and when an advanced student is receiving instruction there are two PICs in the cockpit, or at least two pilots logging PIC time. This apparently contradictory FAA attitude came about when the requirements for the commercial certificate were expanded to include "complex airplane" experience. No FBO could get insurance coverage for a complex airplane to be flown solo (or as PIC with passengers) unless the renter pilot usually an advanced student had far more time in type than the minimum the FAA requires for the commercial certificate. Therefore, the FAA changed its interpretation of the rules to permit the pilot to log both PIC and dual in that situation so that when an advanced student completed his commercial training he would have enough PIC in retractables to be insurable. This interpretation opened the door to further expanding the difference between acting as PIC and logging PIC.

... IFR Operations ...

Logging PIC while flying IFR can be complicated. Even though FAR 61.51(c)(2)(i) permits a pilot to log as PIC the time he is the sole manipulator of the controls of an airplane for which he is rated (qualified to fly by virtue of the certificate he holds), FAR 91.173 states that, "No person may operate an aircraft in controlled airspace under IFR unless that person has (a) filed an IFR flight plan; and (b) received an appropriate ATC clearance." (How about uncontrolled airspace? Is it okay for a non-instrument rated pilot to fly in IMC there?) To fly an aircraft on an IFR clearance the PIC must have a current and valid instrument rating. This conundrum has been consistently interpreted to mean that no pilot may log as PIC any flight time in which the flight is in IMC (instrument meteorological conditions; that is in cloud) or on an IFR ATC clearance unless that pilot holds a current and valid instrument rating. An instrument rating is only valid when the pilot has met the recency of experience requirement. Thus, if your IFR currency has lapsed and you fly on an IFR clearance with an IFR-current pilot in the right seat, the guy in the right seat has to be PIC, and you can't log it as such even if you are the "sole manipulator." If, however, you fly simulated IFR without an actual IFR clearance you can log both PIC and simulated IFR time toward currency.

The only time that a non-instrument rated or non-current IFR pilot may log PIC time when flying in IMC or on an actual IFR clearance is when dual instruction is being administered by an appropriately rated flight instructor. And in that case both pilots log PIC and actual IFR for the flight time in cloud. Obviously, the CFI can't log simulated IFR time even though he is PIC on a flight on an IFR clearance where the pilot flying is wearing a view-limiting device. So when a CFII and rated pilot fly on a clearance in visual conditions we have two PICs but only one pilot logging simulated instrument time. Pop into the clouds and we have two pilots logging actual IFR time.

... And Second In Command

For a pilot to log SIC (second-in-command) time, either the operation (such as FAR Part 135 passenger carrying under IFR without autopilot authorization) or the aircraft (by virtue of its type certificate) must require a co-pilot. Some FSDOs hold that a safety pilot flying with an instrument student or instrument rated pilot maintaining currency should log his time as SIC, based on the fact that the operation requires his presence. Others maintain that the safety pilot should log his time as PIC. And still others say he can do it either way. How's that for consistency? Again, it all depends on whose interpretation you choose to accept.

Accidents

Logging time is essential to advancing one's pilot ratings, retaining currency, and in general establishing one's level of pilot experience, so hours recorded in a book or on a computer are vital to all pilots. But the most perplexing and crucial questions of command authority arise, of course, when there are two or more pilots aboard an aircraft involved in an incident, accident, or violation. When there is an accident and lawsuits begin flying instead of airplanes, we enter a whole new ballpark to play a different game the court game.

State Of Confusion ...

Because aviation by its very nature frequently involves the crossing of state lines, the federal government has preempted local laws regarding all things aeronautical. Thus, if a state aviation commission should make rules that conflict with the FARs, the FARs take precedence. However, in the case of a civil suit brought in federal court the federal court will apply the law of the jurisdiction (state) where the suit is brought. It may not seem fair to change the rules for a civil trial, but we see the differences between criminal and civil legal actions all the time. We all, for example, have constitutional protection against self-incrimination in a criminal trial, but no such protection in a civil or administrative case. A federal court's deference to jurisdictional procedures in civil suits opens up a whole new bunch of interpretations regarding who was PIC at the time of the accident, and if all aboard were killed in the crash, the issue can become very important indeed.

The law in some states holds what lawyers call a "rebuttable presumption" that the occupant of the left front seat was the pilot flying at the time of the crash. This means that the court starts out assuming that the guy in the left seat was manipulating the controls when the accident occurred and was acting as pilot in command, but this assumption can be overturned by evidence to the contrary. In some states the law says that the holder of the highest grade of pilot certificate was in charge at the time of the accident no matter where he was sitting. And in some jurisdictions this is again a rebuttable presumption, while in others the court accepts this as an absolute fact. In many cases, if there is a CFI aboard, he is held to be responsible.

... The FAA's Liability ...

Since the federal government wants to avoid responsibility for any airplane accident, and FAA inspectors are employees of Uncle Sam and Designated Pilot Examiners are representatives of the Administrator when acting in their capacity of examiner, there is a special FAR governing the status of inspectors and examiners conducting flight tests.

FAR 61.47 says inspectors and examiners are specifically not PIC in the flight test situation. Their status is that of "passenger/observer." Even so, in spite of this very specific FAR, some courts have held examiners responsible for accidents that occurred during the course of a flight test, but so far as I know, never an inspector. Other courts have refused to hold examiners responsible based on FAR 61.47.

Incidentally, a student pilot whose certificate specifically states "Passenger Carrying Prohibited" both acts as and logs as PIC the time flown during his flight test, and he has a passenger aboard (the inspector or examiner). The theory under which a student pilot may not log PIC, but only "solo" when he is alone in the airplane is based on FAR 61.51, which states that a recreational, private, or commercial pilot may log PIC time when he or she is the sole manipulator of the controls of an aircraft for which he or she is rated (holds a certificate for that category and class), and a student pilot does not have such a rating. Who knows just why that theory goes out the window when an examiner gets in the right seat to administer a flight test as an official "passenger/observer"?

At least one jurisdiction (state), by statute, holds the person named on the flight plan responsible as PIC in case of an accident or violation. Then, of course there's the legal concept of "vicarious liability" applied by some states that makes the owner (or owner/operator) liable for an accident. If the owner/operator happens to be aboard at the time of an accident he may also be deemed to be PIC even if he wasn't at the controls or even a rated pilot. Perhaps a court may find he exercised "command authority" by giving orders to the guy in the left seat who was driving the airplane. Though such a concept may seem laughable to pilots, the captain of a ship does not operate the controls but is certainly held responsible for the safety of the vessel. Because command authority and control manipulation are not always the same, the term "pilot flying" and "pilot not flying" are commonly used in cockpit crew training instead of the terms "captain" and "co-pilot." The captain is always in command but not always the pilot flying.

... And Courting An Interpretation

When a case involving multiple pilots aboard gets to the trial stage, the court may look at such questions as: (1) Who had access to the controls? (2) Who sat in the left front seat the traditional location of the PIC? (3) Who held the highest grade of pilot certificate, or who had the most overall experience, or who had the most experience in make and model, or in the existing flight conditions? And according to Barbara J. Gazeley, writing in the Lawyer Pilots Bar Association Journal, "Who was the pilot at the time of take-off, and how long after take-off did the accident occur? In some cases, the court has found that it would be unlikely for a more qualified pilot to allow a novice or passenger to operate the controls during the take-off and landing phases of flight"

Accident investigators will look at the physical evidence (position of controls and so forth) in an effort to determine just who was flying at the time of the accident. What was the weather? If it was IMC, who among those on board was instrument rated? Which of the pilots was working the communications radios? (Some courts have held the opinion that the non-flying pilot would be the guy to talk on the radio, while others have taken the opposite position.) Any or all of these factors may be considered by a court in its determination of the question of pilot-in-command, and thus ultimate responsibility for the flight. In at least one case, a pilot who had permitted his medical to lapse delayed a flight until another pilot with a current medical could come along to "legitimize" the flight. Even so, the court held the unqualified (no current medical) pilot to be responsible for the accident or violation. On the other hand, an owner/operator (in one case a corporation) who unknowingly hired an unqualified pilot (no pilot certificate whatever) has been held liable for his actions.

Thus it may not matter at all who logs PIC time, or even who was actually flying the airplane, in determining responsibility for the flight, even though the FAA says the PIC is responsible. A court may have something different to say, and in the final analysis, what the court says is what really matters.

Once again, a careful reading of FAR 61.51(c)(2)(i) indicates that a pilot who is qualified to fly the airplane by virtue of his certificate and rating (higher than student certificate and rated for that category and class) may log as PIC that time during which he or she is the sole manipulator of the controls, provided he or she is also qualified (authorized) to fly by "the regulations under which the flight is conducted." To determine just what regulation applies we must look further if the operation is conducted under FAR Part 91, is the flight VFR or IFR? Is it a commercial operation, or otherwise "for hire"? (The FAA's definition of "for hire" is another weird one, but not a subject for this discussion.) In applying the FARs we must frequently consult the rule we think applies, and then cross-reference it to another to determine just how it applies.

The Bottom Line?

The bottom line is this: If there is any opportunity for the regulations to be interpreted in more than one way, we can be sure they will be, and in some cases in two diametrically opposed ways. If you find all this confusing, rest assured that you're not alone.


Usual Boilerplate: If you have a comment regarding this column, please post it here rather than sending it to me by direct email. That way others may benefit from your input.