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Pilot CounselPilot Counsel

The passenger/pilot as an operatorThe passenger/pilot as an operator

AOPA's legal counselor, John S. Yodice is the owner of a Cessna 310 and a Piper Cub.

AOPA's legal counselor, John S. Yodice is the owner of a Cessna 310 and a Piper Cub.

Do you know which pilot can be held responsible for the safe operation of an aircraft when there is more than one qualified pilot on board an aircraft (certificated for single-pilot operation)? Probably every pilot would answer correctly that it is the pilot in command (PIC). But that is not the whole answer. Many pilots may be surprised to learn that another pilot on board, other than the PIC, can be held responsible and in violation of important flight rules of FAR Part 91. It's a subtle point of which pilots should be made aware.

The seminal case that leads us to this state of the law is a 1974 decision of the National Transportation Safety Board. It held that a pilot is responsible for the safety of the flight if the pilot is technically an "operator" of the flight, even though that pilot may not have been the pilot in command, or even have manipulated the controls, or even have been on board the aircraft at the time. The board looked to the broad definition of the term operate in FAR Part 1: "[to] use, cause to use, or authorize to use aircraft, for the purpose...of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise)."

The case involved a formation of two aircraft that buzzed a Seattle beach at an altitude of less than 50 feet. There were two pilots aboard one aircraft and a single pilot flying the other. The FAA charged all three pilots with being "careless or reckless" in violation of FAR 91.9 (now 91.13) and illegal low flight in violation of the minimum safe altitudes of FAR 91.79 (now 91.119). All three pilots appealed the FAA charges. They were accorded a hearing before an NTSB law judge who sustained the charges against all three. The law judge reduced the FAA-ordered periods of suspension from 60 days to 30 days. Only one of the pilots, a co-owner of the two-pilot aircraft, further appealed his case to the full five-member board. The full board affirmed the FAA charges against the co-owner, establishing this relatively obscure law.

The procedural context was unusual. The appealing co-owner of the offending aircraft, acting without a lawyer, decided not to testify at the hearing before the NTSB judge. He relied instead on his written brief to the full board (which is not evidence) in which he argued that he was not an occupant of the aircraft at the time, much less pilot in command. The other co-owner and the pilot of the other aircraft told the FAA investigating inspector that the appealing pilot was on board the aircraft during the buzzing incident. On the basis of these facts, the question then presented before the board was whether the pilot's status as the co-owner and co-occupant was sufficient to find him in violation of the cited regulations even though he had not been shown to be acting as pilot in command or manipulating the flight controls. The board answered yes. It held that since the cited regulations are phrased in terms of "no person may operate an aircraft," and the term operate has a meaning beyond either just operating the controls or acting as pilot in command, the appealing pilot's role as co-owner and co-occupant could be a violation of the cited regulations. However, the board left us some wriggle room in this expansive reading of the regulations by saying that not every operator would be held in violation. "Rather, the operator must be shown to have been involved in the flight in such a manner that it can reasonably be inferred that, in the absence of any evidence to the contrary, he participated in, authorized, or permitted the violations." The appealing pilot, the board said, "had such an involvement with respect to the low flight in question." Appeal denied. The 30-day suspension of his commercial pilot certificate was affirmed.

The FAA reinforced this law in a 1993 published legal interpretation that involved a slightly different scenario. The FAA was answering a hypothetical question in which both pilots on board met all of the regulatory requirements to serve as pilot in command and for the operation being conducted. According to the hypothetical situation, the pilot in the right seat could happen to be the aircraft's owner, and may from time to time help see and avoid other aircraft, read the checklist, and perform other tasks. The right-seat pilot/owner might even file a flight plan naming himself as pilot, though he would neither manipulate the controls nor take over the controls in an emergency. The FAA answered, referring to the 1974 case, by saying, "Regardless of the identity of the actual pilot in command, a pilot/owner could be charged with violating the regulations in certain circumstances. In determining whether a pilot/owner in the right seat can be charged with violating the federal aviation regulations (e.g., Section 91.13), a critical issue is whether he operated or had operational control of the aircraft as those terms are defined in Part 1 of the regulations and as those terms are construed in enforcement cases. Simply designating the pilot in the left seat as the pilot in command is not necessarily an exculpatory factor. Furthermore, the fact that the aircraft's type certificate only requires one pilot for operations under Part 91 and the fact that the pilot/owner never manipulated the controls are not conclusive evidence on the issue of who operated the aircraft."

Then, a year later, another NTSB decision reaffirmed this law. The case involved a pilot who was the owner and director of operations for an air charter company. He and a company employee/pilot took a company aircraft on a trip to demonstrate it to a potential purchaser. They took turns on the various legs of the trip. On the last leg home, the employee/pilot was the flying pilot. On the first attempt to land, the employee/pilot lowered the gear handle. The pilot/owner noticed that the gear-down lights were not lit, and told the employee/pilot to execute a go-around. They barely avoided a gear-up landing. The propellers struck the runway but the employee/pilot was able to go around and ultimately make a successful landing.

The FAA charged the pilot/owner with violating FAR 91.13 (careless or reckless operation) and imposed a 15-day certificate suspension. A law judge sustained the FAA charge, and the full board affirmed. The pilot/owner argued on appeal that he should not be held responsible because he was attempting only to help the employee/pilot in a critical situation and, indeed, he saved the aircraft from a gear-up landing. Both the pilot and the Experimental Aircraft Association (as a friend of the court) argued that this ruling, if left to stand, would chill all pilot/owners from participating or assisting in flight operations. The board rejected these arguments. The board offered this solution: "Respondent [the pilot/owner] as a pilot and Mr. [X's] employer could have chosen to have no role in the aircraft's operation, could have clearly told Mr. [X] that he was the PIC or could have stated his intent to perform certain functions and no others. Our decision does not prevent pilot/owners from avoiding responsibility for actions of their pilot/employees." It is difficult to imagine any pilot passenger (or pilot/owner) on board an aircraft in a critical or emergency situation not offering to assist the pilot in command. Apparently, this assistance can be offered only at the risk of having the assistance deemed careless or reckless in hindsight. And, as we have seen in this case, it doesn't take much for the FAA and NTSB to reach such a conclusion.

The board restated the law of which pilots should be aware: "That an aircraft requires only one pilot does not support a conclusion that a second pilot (or even a non-pilot) participating in the in-flight operations is not accountable for his own actions under Section 91.13(a)."

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