Time to Stop Flying? An Attorneys Perspective

One lawyer's point of view on maximizing your remaining years of flight while minimizing risk and eventually making the decision to hang up the goggles.

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As the pilot population ages a significant portion of the graybeards (female and male) are now interrupting their muttering about the unfairness of a pilot shortage happening when they’re no longer in a position to take advantage of it with entering into conversations as to when it’s going to be time to pull the mixture to idle cutoff and knot the tiedown ropes for the last time. As an aviation lawyer, I’ve become increasingly interested in the topic because I counsel pilots about variables, options and available tools in the complex continuing to fly question, I have seen the unpleasant results of pilots who tried to keep flying too long and I recognize that someday I’ll have to make the decision for myself.

I have pilots come to me to discuss the “end of flight” decision for a number of reasons—everything from a personal concern because they want to be proactive through responding to pressure from family or friends about the way they’ve been flying to puzzlement or anger because the $#%@& FAA has had the temerity to come after them for an alleged violation of the regs or are demanding they take a “709” ride.

When I talk with pilots about the realities of getting older and making the decision to stop flying, I usually point them at what I consider to be two excellent resources on the subject put together by the AOPA: its Aging and the General Aviation Pilot research article and online course, Aging Gracefully, Flying Safely. I can’t recommend them highly enough and I note that many volunteer pilot organizations that do public benefit flying require their volunteer pilots to take and pass the online course before making flights in conjunction with the organization.

Good News and Bad News

The good news is that there are a massive number of variables that come into play in determining how long a pilot can safely keep flying—and there isn’t any magic age at which a pilot should stop. Since the FAA changed the Age 60 Rule for disqualifying airline pilots to the Age 65 Rule, the aircraft accident rate has gone down. We can safely say that having airline captains fly through their 64th rather than their 59th year hasn’t caused aluminum rain. Another piece of good news is that, to the extent that data exists, a combination of overall experience, recent flying experience and recent recurrent training for older pilots means that they can have a lower accident rate than younger pilots with less experience—although that data is largely based on research on populations of professional pilots.

The bad news is that by age 55, every single pilot is slowing down and at increasing risk of bending an airplane. Another facet of that bad news is that if you are not a professional pilot, your risk of having an accident is higher than if you are.

When I counsel pilots, I point out that each one of them has been self-evaluating for years—before every flight they’ve considered making they’ve decided if they feel well enough to fly, if the weather is going to be good enough for them to make the flight, if they can handle the crosswinds expected, if the runways they’ll need to use are long enough, if they need a little dual before making a flight and more. Except in the case of a stroke or getting whacked on the head, few pilots suddenly lose their ability to recognize that they shouldn’t make a particular flight. However, the ability does deteriorate over time and the pilot may not recognize either that he shouldn’t be making a particular flight or continuing to fly at all.

I think the time to start considering the end of flight decision is now—not after the FAA has contacted you to ask about something you’ve done. I’ll discuss both the situation where a pilot comes to me to discuss the legal part of his or her decision to keep flying or stop and then what if the FAA has come knocking, possibly because of something you did because of aging issues.

Insurance

One of the comments I hear from aging pilots is that “when I can’t pass a medical anymore, I’m going to get a Cub or Champ and base it on a remote strip and keep flying.” I have no doubt that’s been done and is being done right now. Third class medical reform may reduce the number of pilots who take this step.

When asked, my response is to ask whether the pilot is also protecting his family and his assets when he makes this move. While he usually recognizes that he won’t be able to get insurance. The most common follow up I hear to “I’m gonna just keep flying phrase” is that if he wrecks the airplane, he’ll just accept the loss. What is more difficult to discuss is whether he will carry passengers, and if so, how he will deal with the fact that he doesn’t have liability insurance and he has some assets. Is it fair to put a family’s financial well-being at risk—completely outside of the loss they will feel when they realize that their long-time, “great pilot” relative/father/mother/wife/husband crashed because he or she was no longer a great pilot, showed lousy judgment and the fallout has cost the family virtually every cent it had? Is the pilot willing to be that selfish just to indulge the fantasy that he’s perfectly competent to keep flying?

One of the best yardsticks for making the decision to stop flying is if you can’t get liability insurance for the flying you intend to do. That means a number of aviation insurance underwriters—people who make their living evaluating insurable risk—have decided that you are too much of a risk for every one of their companies to insure. If your response is to say “screw it, I’ll fly anyway,” the poor judgment you are exhibiting may be strong evidence of mental impairment, dementia or deterioration that means you shouldn’t be flying.

If you have insurance, don’t let it lapse. You may not be able to get it reinstated—a renewal is easier than having to make a new application.

Once you’re over about 65, insurers may start getting nervous about covering you. It may not be possible to change insurers, especially if you’ve made a claim. If you’ve been using the same broker for years to place your insurance, stick with him or her and talk with your broker about coverage going forward. Ask what the insurers want to see to keep you insurable. Right now we’re in a “soft” insurance market, so there is more coverage available, at lower prices, than there has been in decades. That can change. Maintain a good working relationship with your broker.

Strategies to Minimize Risk

I’ve had a lot of conversations with pilots who have recognized that they’ve lost a step, want to continue flying and want to put together a strategy for doing so. In most cases, they’ve thought about it pretty hard and have come up with a strategy that fits them and just want some validation and additional ideas. I’ll run through some of the ones that have been presented by pilots I respect and were, in my opinion, good ones.

Stop flying at night. A significant number of pilots I’ve discussed aging issues with have decided that a combination of the loss of visual acuity at night and the accident data that shows increased risks of bad things happening when flying at night has caused them to only fly during daylight. As one said, “I don’t have to be anywhere badly enough that I can’t schedule the trip during the day.”

Transition out of a complex airplane. One pilot who had been flying a high-performance, retractable-gear single for over 30 years decided to move to a fixed-pitch prop, fixed-gear single that cruised 60 knots slower. While he had to go through some transition training, he stuck with the familiar six-pack instrument presentation and avionics he was used to. It worked well for him—he didn’t have to work as hard to stay ahead of the airplane, overall workload was lower and he didn’t have to worry about forgetting to extend the gear.

Stop flying tailwheel airplanes. The combination of slowing reflexes and reducing the risk of runway loss of control by a factor of two to three by flying only nosewheel airplanes means less chance of bending an airplane. One pilot said he liked flying tailwheel airplanes but had decided to only do so with an instructor aboard. That way, if he groundlooped, the CFI would be the pilot in command and get the blame.

File IFR for all cross-country flights. So long as you are comfortable you can comply with clearances and not bust altitudes, take advantage of the resources available to you when talking with ATC. One of the more common problems I see with aging pilots is airspace violations—inadvertently flying into Class B airspace or a TFR. Being on an IFR flight plan will reduce that risk to essentially zero. Nevertheless, recognize that as we age, we lose short-term memory ability. If you find yourself having trouble consistently reading back clearances, it may be time to stop flying IFR.

Take a flight review and an IPC every six months. The data on aging pilots is clear—recent experience and recurrent training is vital when it comes to keeping the risk of an accident low. At the end ask the CFI for his or her evaluation of your performance, specifically asking if he or she sees warning flags of deterioration of your skill or judgment.

Stop carrying passengers. If you’re getting concerned about your skills, but think you’re still doing okay, consider only flying solo.

Only fly with another pilot—but coordinate things ahead of time as to who is responsible for what.

Write down your objective, personal performance minimums for IFR and VFR flight. What are the minimum objective standards that you think you should be able to meet to fly IFR and VFR? What altitude, airspeed and heading parameters? What distance from centerline and spot on the runway for touchdown on landing? When you can’t comfortably hit them, it’s time to keep your promise you made to yourself when you wrote them down.

The FAA is Calling

If the pilot is contacting me because he or she has been told by the FAA to come in to the local FSDO for what’s commonly called a 709 ride, the situation changes as there is a chance (according to conversations with FAA inspectors, about five percent) that the incident that attracted the FAA’s interest is an early warning that it is time for the pilot to stop flying.

I’m usually asked what a 709 ride is, whether the FAA can force the pilot to take one and whether he or she should fight it or take the ride. The answers are that a 709 ride gets its name from 49 USC Section 44709, which is federal law that allows the FAA to reinspect a pilot to determine if he or she meets the requirements of the pilot certificates the pilot holds. The pilot has the choice of not taking the ride, but that almost invariably results in the suspension or revocation of the pilot’s certificate unless the pilot can prove that the FAA was acting unreasonably when it demanded reexamination of the pilot.

Once I’ve spoken to the pilot about the background leading up to the demand for a 709 ride, I usually recommend that the pilot call the FAA inspector, discuss what will be covered on the ride and schedule it for a few weeks out—enough time to also get with a CFI and take a few hours of dual.

I want to talk with the pilot and the CFI after the dual session(s) and before the 709 ride. The purpose is to see if the CFI and the pilot agree on the pilot’s readiness to pass the 709 ride. Most commonly they agree that the pilot is ready. It may be that they agree that the pilot cannot pass the 709 ride, even with additional dual and it’s time for the pilot to stop flying.

I’ve yet to have the pilot and CFI disagree. My plan for the situation is to recommend the three of us have a longer conversation. If the CFI says the pilot’s ready and the pilot doesn’t think he is, I would suggest that either the two of them map out a plan to fly together to see if the pilot’s confidence level can be raised to match his skill level. If that is not feasible, I’ll recommend that the pilot, CFI and I have the talk about the pilot deciding that it’s time to stop flying and surrender his certificate to the FAA rather than taking the 709 ride.

The worst case is if the pilot thinks he’s doing fine and the CFI thinks he’s not competent to pass a 709 ride. That is a strong indication that the pilot is no longer able to self-evaluate and is a serious matter. If and when I run into this situation, my plan is to ask the pilot to then involve his spouse and potentially adult children and a doctor or mental health professional in further discussions. The pilot may deny that he’s got a problem at all and refuse.

The 709 Ride

Every pilot I’ve counseled prior to taking a 709 ride has passed. Each one has called me afterward to tell me it was no big deal and that the FAA inspector recognized he was nervous and made him as comfortable as possible. My conversations with FAA inspectors have been consistent with what my clients have told me—and the inspectors tell me that 19 out of 20 of the 709 rides are no big deal, especially if the pilot has gotten a little dual beforehand (they also tell me that taking dual indicates to them as an inspector that the pilot is taking the matter seriously).

About five percent of the pilots who take 709 rides fail them. Unscientific polling indicates that the majority of those failures are aging pilots who should have stopped flying and the 709 process caught that fact. There are some cases where pilots who have failed 709 rides have refused to accept the result, usually claiming the inspector or the FAA was out to get them and they really did very well. Those situations have generated FAA enforcement actions. In the ones I’ve read, the FAA’s response was to offer the pilot another checkride with a different inspector. In all of them the pilot again failed and continued to insist that he or she was a great pilot and had an excuse for every time he or she couldn’t meet some objective standard such as holding altitude within certain parameters—it was all someone or something else’s fault. In all of the cases, the FAA eventually prevailed and revoked the pilot’s certificate.

Once an aging pilot who came to me because of an impending 709 ride passes the ride, I recommend that he and I have one more conversation—about developing a strategy for risk management if he wants to continue to fly. I’ll go over the items I listed above.

Conclusion

There is one last strategy for risk management that all pilots who don’t kill themselves in crashes eventually have to implement: Stop flying as pilot in command. That’s when you recognize that you’ve had a wonderful run, that you’ve made memories that only a tiny fraction of one percent of the people in the world can ever claim and congratulate yourself on your success as a pilot. Revel in it. Bore others with it. In quiet moments, open up your logbook to random pages, read what you wrote and remember the flights, the views and slipping down final to touch down lightly in the grass and the person in the other seat saying quietly, “nice job.”

Rick Durden is an aviation attorney and CFII who holds an ATP with type ratings in the Douglas DC-3 and Cessna Citation. He is the author of The Thinking Pilot’s Flight Manual or, How to Survive Flying Little Airplanes and Have a Ball Doing It, Vols 1 & 2.