Pilot Counsel:

A pilot’s emergency authority

December 1, 2008

John S. Yodice has served as legal counselor to AOPA since 1963.

We have all experienced how the handling of in-flight emergencies is stressed in pilot training, testing, recurrency, and the like.

From the very beginning of our primary training, we were taught to find a safe place to land in the event of a power failure. The intensity of the emergency training grew from there. Hand in hand with this training should go the pilot’s understanding of his or her legal authority under the regulations to handle real-life emergency situations. Safety is the primary concern. The pilot’s authority is intentionally broad. That is to ensure that a pilot will feel free to do whatever is necessary to handle the emergency without having to worry about the FAA enforcing the regulations that were necessarily violated.

This authority will be found as part of a number of the operating and flight rules of the federal aviation regulations. In its most comprehensive form it is found in FAR 91.3, “Responsibility and authority of the pilot in command.” Paragraph (a) of the regulation provides that: “The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.” This relatively simple, straightforward provision leaves no doubt that, according to the FAA, the pilot has the ultimate responsibility for the safety of the flight. In the words of the provision, he or she is the final authority, literally, and not subject to overruling by anyone. The regulation gives the pilot the authority necessary to meet that responsibility.

In equally plain and unequivocal language, paragraph (b) of this regulation gives the pilot the power, not lightly granted, to disregard any of the flight rules as long as the deviation is necessary to handle an immediate in-flight emergency. Specifically, it says: “In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part [Part 91, the general operating and flight rules] to the extent required to meet that emergency.”

In most cases the exercise of this exceptional power does not lead to further FAA action. The circumstances ordinarily satisfy the FAA. However, the FAA does have the right to ask the pilot what happened. Subsection (c) provides: “Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the [FAA] administrator, send a written report of that deviation to the administrator.” Notice that the requirement for an explanation is not automatic. It applies only if the FAA asks for one. The FAA does not usually ask unless the circumstances warrant.

This same emergency authority is found in other rules. For example, FAR 91.123, dealing with air traffic control clearances and instructions, grants authority to deviate from a clearance or instruction in an emergency. Also, FAR 91.113, which sets out the right-of-way rules for aircraft in flight, expressly recognizes the pilot’s emergency authority to deviate from the right-of-way rules. The rules governing airline and commercial operations have similar provisions.

As with all general rules, there is always an exception. You won’t find it in the specific rules we have cited. The FAA’s position is that these regulations do not excuse a deviation if the in-flight emergency was of the pilot’s own making. In such a case the FAA could bring an enforcement case against the pilot that could lead to a suspension of his or her FAA certificate, or even revocation. It could also be a request for reexamination of the pilot’s qualifications.

There are very few cases to illustrate how the FAA applies this exception. The classic illustration is one in which the VFR pilot gets caught in instrument weather. The question then becomes, did the pilot do a proper job of checking and monitoring the weather before and during the flight? Did he or she make a timely decision to get out of the bad weather? If not, the emergency could be considered to be one created by the pilot, the FAA would say. The FAA’s determination is one subject to review by the National Transportation Safety Board in an appeal of a suspension or revocation. There is a minority of cases in which the NTSB has reversed the FAA and ruled in favor of the pilot.

Perhaps it goes without saying, regardless of any regulatory authority, that pilots will handle (and historically have handled) emergencies in such a way as to minimize the risk to others, often at increased risk to themselves. Nevertheless, it is important to know and understand the pilot’s emergency authority under the regulations.

To summarize, then, in an in-flight emergency requiring immediate action, a pilot should not hesitate to exercise his or her authority to violate any flight rules necessary to deal with the emergency. The FAA has recognized the safety importance of this authority. Hopefully, the emergency will be resolved without any injury or damage to anyone or anything. The FAA does not usually ask for an explanation if the situation explains itself, but it has the right to do so. The FAA is less tolerant of a situation that the pilot creates himself. Nevertheless, a pilot should do whatever is necessary to deal with an in-flight emergency. If it comes to that, deal with the FAA later.

John S. Yodice