Pilot Counsel:

Who's in command?

July 1, 2008

John S. Yodice owns and flies a Cessna 310 from Frederick Municipal Airport (FDK).

“Who is pilot in command when there is more than one pilot on board a dual-control aircraft?” This is a situation that occurs frequently in our everyday flying. Most times the answer is obvious. For commercial flights there is almost always a paperwork designation. For private, Part 91, operations the answer is usually obvious from the circumstances or by an advance agreement. But sometimes the answer is not so obvious, and no one worries about it until there is an accident or incident. Then, who was pilot in command has to be answered after the fact, usually by a National Transportation Safety Board interpretation in an FAA enforcement case. The FARs are not much help. Prior board decisions are.

Earlier this year in this column (“ Pilot Counsel: A Shifting Concept,” January AOPA Pilot), we reported a case in which the NTSB made such an interpretation. That case put pilots on notice that if a nonflying pilot is on board a dual-control aircraft with another pilot who is flying the aircraft and acting as pilot in command, and for some legitimate reason the nonflying pilot temporarily manipulates the controls, even under compelling circumstances, the nonflying pilot is in jeopardy of being considered to be the pilot in command for purposes of finding regulatory violations.

In that case a very experienced pilot, a former flight instructor, sat in the right seat to accompany a fully qualified commercial pilot who rented the aircraft to build flight time and get some instruction on landings. The more experienced pilot was not the pilot in command at the start of the flight, and there was no intention that he should become PIC during the flight. The less experienced pilot rented the aircraft and did the preflight planning, and the flying. She erroneously programmed the GPS, and she eventually flew the aircraft into an airport in Class D airspace. She did so without obtaining a clearance or establishing two-way communication with the control tower.

The board held that the right-seat pilot, who was not aware that the aircraft was in Class D airspace, became pilot in command when he temporarily took the controls of the aircraft to demonstrate a landing after a less-than-satisfactory touch and go by the flying pilot. Once having been determined to be the PIC, the right-seat pilot was found to have violated the regulations (the Class D clearance and communication requirements), suffering a loss of his ATP certificate for a period of 90 days.

The board went on to say that even if the right-seat pilot assumed the controls after the flying pilot “just let go of the controls” in a panic, as the right-seat pilot claimed, the result would be the same. He would still be deemed to be the pilot in command. Maybe the board reached a just result in punishing the right-seat pilot, but in order to do so it confused the concept of PIC by suggesting that when a pilot temporarily operates the flight controls, the pilot stands in jeopardy of being held to be pilot in command.

In this case, the NTSB was called upon again to express itself, this time in a situation in which one of two pilots on board was not medically qualified to act as pilot in command, a situation unknown to the other pilot (at least initially). Here are the circumstances. A pilot (“the qualified pilot”) and his wife, along with a member of their flying club whom they did not know, planned to fly to Key West for the day. The organizers of the day trip assigned both pilots to a Cessna aircraft. The wife, who was not a pilot, sat in the back.

The two pilots decided the second pilot (who turned out not to have a valid medical certificate) would fly to Key West and the “qualified” pilot would fly the return leg. The PIC issue was not discussed. The “qualified” pilot operated the radios and navigated from the right seat on the first leg. On the trip, the pilots became disoriented, and made an unauthorized landing at a military airbase. Apparently the flight was allowed to depart the base, with the second pilot still operating the controls and the “qualified” pilot navigating and operating the radios. Then the aircraft ran out of fuel and landed on a highway.

The FAA understandably brought an action against the second pilot for operating as PIC when he didn’t have a current medical. But, the FAA also brought action against the “qualified” pilot, asserting that he operated as PIC on the portion of the flight from the airbase to the highway landing. Although the “qualified” pilot may not have known that the second pilot did not have a medical when they began the trip, he did know it when they took off from the airbase.

The board, in deeming the “qualified” pilot to be PIC, cited one of its earlier decisions for the proposition that, when a pilot flies with another pilot who is not qualified to be PIC, and the qualified pilot knows of the other pilot’s limitations, the qualified pilot has implicitly accepted PIC responsibility for the flight.

So, while it is clear in most instances who is pilot in command of a dual-control aircraft carrying two pilots in the control seats, pilots are on notice that temporarily operating the controls for whatever legitimate reason, or being aware that the other pilot flying the aircraft is not qualified to act as PIC, could result in the unanticipated imposition of PIC responsibility on an unsuspecting pilot.