Legal Briefing

Who's the passenger on this flight?

Going through my primary training, I understood that my flight instructor was the pilot in command of the flight, which made him a required crewmember. I understood that I was a student pilot, but not a required flight crewmember. But, was I a passenger? Or was I something else?

I didn't really have a need to know at the time, so I never made the time to try to figure it out. I still haven't. But a recent FAA legal interpretation seems to bring me closer to answering that question from so long ago, and I must admit that the answer is not what I would have thought.

The scenario presented to the FAA asks the question in the context of night currency. FAR 61.57(b) states,

...No person may act as pilot in command of an aircraft carrying passengers during the period beginning one hour after sunset and ending one hour before sunrise, unless within the preceding 90 days that person has made at least three takeoffs and three landings to a full stop during the period beginning one hour after sunset and ending one hour before sunrise, and--

That person acted as sole manipulator of the flight controls; and

The required takeoffs and landings were performed in an aircraft of the same category, class, and type (if a type rating is required).

The currency requirement of this regulation is linked to carrying passengers. So, if I wanted to carry passengers on a night flight, I would have to make sure that I had logged three full-stop landings at night during the past 90 days. I don't fly a lot at night, so I was almost always "out of night currency" when an opportunity came up to fly somewhere at night with other people on board. On those occasions, one night prior to the planned night flight with passengers, I would get in the airplane at night, by myself, and get current. I could have brought a flight instructor with me, but then I wouldn't have been able to log the flight as pilot in command, right? After all, wouldn't the flight instructor be a passenger? What else would the flight instructor be since I don't fly airplanes that require more than one crewmember? Well, the answer is not necessarily so simple.

Basically, this is my question: If I had a flight instructor on board the aircraft during my night flight to gain night currency, and if the flight instructor--like me--was not night current, would the flight be in violation of the regulation? At first, I would think to say "Yes, that's a violation because neither one of the pilots is night current to be able to carry another person on board the aircraft." But, the FAA says, "No, it would not be a violation because neither pilot is a passenger." Here's what the FAA says:

We agree that, for purposes of section 61.57(b), an authorized instructor providing instruction in an aircraft is not considered a passenger with respect to the person receiving instruction, even where the person receiving the instruction is acting as PIC. (The instructor must be current, qualified to instruct, and hold a category, class, and type rating in the aircraft, if a class and type rating is required.) The instructor is not a passenger because he is present specifically to train the person receiving instruction. Neither is the person receiving instruction a passenger with respect to the instructor. This training may take place, even though neither pilot has met the 61.57(b) requirements.

So, not only is it legal to take a night flight when you and your flight instructor are not night current, but both may also log it as PIC. But be careful--only a pilot who is the sole manipulator of the controls for three full-stop landings at night would be able to log the landings for purposes of night currency under FAR 61.57(b). That's something to consider when you need to get night current.

Kathy Yodice is an attorney with Yodice Associates in Washington, D.C., which provides legal counsel to AOPA and administers AOPA's legal services plan. She is an instrument-rated private pilot.