Eye of Experience #30:Who’s Responsible?

Oneof the most difficult subjects an instructor ever has to teach is the awesomeresponsibility of being pilot in command (PIC) of an airplane carryingpassengers. Federal Aviation Regulation (FAR) 1.1 says, "'Pilot in Command'means the pilot responsible for the operation and safety of an aircraft duringflight time." And according to Part 91.3 (a), "The pilot in command ofan aircraft is directly responsible for, and is the final authority as to, theoperation of that aircraft." This begs the question of the differencebetween acting as PIC and logging PIC time. Also please note that "flighttime" as defined in FAR Part 1 means when you first board (or at leaststart up) an aircraft with the intention of flying it. This means thatresponsibility starts sooner than many people think. I've seen well trainedpilots bury their heads in the cockpit, shout "Clear!" and turn thekey to engage the starter without ever looking around outside to make sure thearea is really clear.

Two Different Things

In order to really know what it is to be PIC, it is first vital to understandthat acting as pilot-in-command and logging PIC time may be quite differentthings indeed. And when this is coupled with the fact that each FAA regioninterprets the regulations as it sees fit (and, worse still, many FlightStandards District Offices (FSDOs) have their own interpretations) and it's nowonder that confusion reigns. There can even be differences between the waysindividual inspectors in the same FSDO read the regulations.

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

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 thereis an event causing alarm within the FAA. Next comes a knee-jerk reaction to theevent, along with an immediate call for a regulatory band-aid to cover up theproblem - and the aviation community is stuck with another regulation that maywell cause more problems than it cures.

Student Pilots ...

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

Once anindividual holds a recreational or higher-grade pilot certificate, the FARschange to allow him or her to log as PIC that time he or she is manipulating thecontrols while receiving instruction. The regulations permit a pilot who isqualified 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 otherwords, when a student pilot is solo, there is no PIC in the cockpit, and when anadvanced student is receiving instruction there are two PICs in the cockpit, orat least two pilots logging PIC time. This apparently contradictory FAA attitudecame about when the requirements for the commercial certificate were expanded toinclude "complex airplane" experience. No FBO could get insurancecoverage 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 intype than the minimum the FAA requires for the commercial certificate.Therefore, the FAA changed its interpretation of the rules to permit the pilotto log both PIC and dual in that situation so that when an advanced studentcompleted his commercial training he would have enough PIC in retractables to beinsurable. This interpretation opened the door to further expanding thedifference between acting as PIC and logging PIC.

... IFR Operations ...

LoggingPIC while flying IFR can be complicated. Even though FAR 61.51(c)(2)(i) permitsa pilot to log as PIC the time he is the sole manipulator of the controls of anairplane for which he is rated (qualified to fly by virtue of the certificate heholds), FAR 91.173 states that, "No person may operate an aircraft incontrolled airspace under IFR unless that person has (a) filed an IFR flightplan; and (b) received an appropriate ATC clearance." (How aboutuncontrolled airspace? Is it okay for a non-instrument rated pilot to fly in IMCthere?) To fly an aircraft on an IFR clearance the PIC must have a current andvalid instrument rating. This conundrum has been consistently interpreted tomean 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 ATCclearance unless that pilot holds a current and valid instrument rating. Aninstrument rating is only valid when the pilot has met the recency of experiencerequirement. Thus, if your IFR currency has lapsed and you fly on an IFRclearance with an IFR-current pilot in the right seat, the guy in the right seathas to be PIC, and you can't log it as such even if you are the "solemanipulator." If, however, you fly simulated IFR without an actual IFRclearance 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 logPIC time when flying in IMC or on an actual IFR clearance is when dualinstruction is being administered by an appropriately rated flight instructor.And in that case both pilots log PIC and actual IFR for the flight time incloud. Obviously, the CFI can't log simulated IFR time even though he is PIC ona flight on an IFR clearance where the pilot flying is wearing a view-limitingdevice. So when a CFII and rated pilot fly on a clearance in visual conditionswe have two PICs but only one pilot logging simulated instrument time. Pop intothe 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 (suchas FAR Part 135 passenger carrying under IFR without autopilot authorization) orthe aircraft (by virtue of its type certificate) must require a co-pilot. SomeFSDOs hold that a safety pilot flying with an instrument student or instrumentrated pilot maintaining currency should log his time as SIC, based on the factthat the operation requires his presence. Others maintain that the safety pilotshould log his time as PIC. And still others say he can do it either way. How'sthat for consistency? Again, it all depends on whose interpretation you chooseto accept.

Accidents

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

State Of Confusion ...

Becauseaviation by its very nature frequently involves the crossing of state lines, thefederal government has preempted local laws regarding all things aeronautical.Thus, if a state aviation commission should make rules that conflict with theFARs, the FARs take precedence. However, in the case of a civil suit brought infederal 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 civiltrial, but we see the differences between criminal and civil legal actions allthe time. We all, for example, have constitutional protection againstself-incrimination in a criminal trial, but no such protection in a civil oradministrative case. A federal court's deference to jurisdictional procedures incivil suits opens up a whole new bunch of interpretations regarding who was PICat the time of the accident, and if all aboard were killed in the crash, theissue can become very important indeed.

The law in some states holds what lawyers call a "rebuttablepresumption" that the occupant of the left front seat was the pilot flyingat the time of the crash. This means that the court starts out assuming that theguy in the left seat was manipulating the controls when the accident occurredand was acting as pilot in command, but this assumption can be overturned byevidence to the contrary. In some states the law says that the holder of thehighest grade of pilot certificate was in charge at the time of the accident nomatter where he was sitting. And in some jurisdictions this is again arebuttable presumption, while in others the court accepts this as an absolutefact. 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 airplaneaccident, and FAA inspectors are employees of Uncle Sam and Designated PilotExaminers are representatives of the Administrator when acting in their capacityof examiner, there is a special FAR governing the status of inspectors andexaminers conducting flight tests.

FAR61.47 says inspectors and examiners are specifically not PIC in the flight testsituation. Their status is that of "passenger/observer." Even so, inspite of this very specific FAR, some courts have held examiners responsible foraccidents that occurred during the course of a flight test, but so far as Iknow, never an inspector. Other courts have refused to hold examinersresponsible based on FAR 61.47.

Incidentally, a student pilot whose certificate specifically states"Passenger Carrying Prohibited" both acts as and logs as PIC the timeflown during his flight test, and he has a passenger aboard (the inspector orexaminer). 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, whichstates that a recreational, private, or commercial pilot may log PIC time whenhe or she is the sole manipulator of the controls of an aircraft for which he orshe is rated (holds a certificate for that category and class), and a studentpilot does not have such a rating. Who knows just why that theory goes out thewindow when an examiner gets in the right seat to administer a flight test as anofficial "passenger/observer"?

At least one jurisdiction (state), by statute, holds the person named on theflight plan responsible as PIC in case of an accident or violation. Then, ofcourse there's the legal concept of "vicarious liability" applied bysome states that makes the owner (or owner/operator) liable for an accident. Ifthe owner/operator happens to be aboard at the time of an accident he may alsobe 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 givingorders to the guy in the left seat who was driving the airplane. Though such aconcept may seem laughable to pilots, the captain of a ship does not operate thecontrols but is certainly held responsible for the safety of the vessel. Becausecommand authority and control manipulation are not always the same, the term"pilot flying" and "pilot not flying" are commonly used incockpit crew training instead of the terms "captain" and"co-pilot." The captain is always in command but not always the pilotflying.

... And Courting An Interpretation

When a case involving multiple pilots aboard gets to the trial stage, thecourt may look at such questions as: (1) Who had access to the controls? (2) Whosat in the left front seat - the traditional location of the PIC? (3) Who heldthe 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 flightconditions? And according to Barbara J. Gazeley, writing in the Lawyer PilotsBar Association Journal, "Who was the pilot at the time of take-off, andhow long after take-off did the accident occur? In some cases, the court hasfound that it would be unlikely for a more qualified pilot to allow a novice orpassenger to operate the controls during the take-off and landing phases offlight"

Accidentinvestigators will look at the physical evidence (position of controls and soforth) in an effort to determine just who was flying at the time of theaccident. What was the weather? If it was IMC, who among those on board wasinstrument 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 totalk on the radio, while others have taken the opposite position.) Any or all ofthese factors may be considered by a court in its determination of the questionof pilot-in-command, and thus ultimate responsibility for the flight. In atleast one case, a pilot who had permitted his medical to lapse delayed a flightuntil another pilot with a current medical could come along to"legitimize" the flight. Even so, the court held the unqualified (nocurrent medical) pilot to be responsible for the accident or violation. On theother hand, an owner/operator (in one case a corporation) who unknowingly hiredan unqualified pilot (no pilot certificate whatever) has been held liable forhis actions.

Thus it may not matter at all who logs PIC time, or even who was actuallyflying the airplane, in determining responsibility for the flight, even thoughthe FAA says the PIC is responsible. A court may have something different tosay, 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 pilotwho 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 logas 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 "theregulations under which the flight is conducted." To determine just whatregulation applies we must look further - if the operation is conducted underFAR Part 91, is the flight VFR or IFR? Is it a commercial operation, orotherwise "for hire"? (The FAA's definition of "for hire" isanother weird one, but not a subject for this discussion.) In applying the FARswe must frequently consult the rule we think applies, and then cross-referenceit to another to determine just how it applies.

The Bottom Line?

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