We as pilots are bound by the laws governing our flying, not only the laws in the federal aviation regulations that are most familiar to us, but also the laws and interpretations declared in the decisions of the National Transportation Safety Board. Unfortunately for us, the laws declared by NTSB in the context of FAA enforcement cases are frequently skewed “to get the pilot.” As I have observed in past columns, “hard cases make bad law.” The board’s efforts to punish errant pilots sometimes result in laws and interpretations that don’t make sense, at least not to us as pilots.
Last month in this column I reported such an NTSB case (see “Pilot Counsel: ‘Airworthy Condition’—Again,” December 2007 Pilot). The case declared that insignificant damage (a bent small piece of sheet metal, a light shield, on the wingtip of a Cessna 182 that the pilot straightened out with his fingers) makes the aircraft “unairworthy,” and declared that pilots who fly aircraft with such conditions are in violation of the FARs. So, unfortunately for us, if we fly an aircraft with minor damage that we conscientiously believe is insignificant and nevertheless safe, we stand in danger of second-guessing by the FAA and NTSB.
This month I am reporting a case dealing with a common situation I addressed more than a decade ago. “Flying with more than one qualified pilot on board a dual-control aircraft is a situation that occurs frequently in our everyday flying. Most times it is fairly obvious who is pilot in command. But many times it is not, and typically no one worries about it—until there is an accident or an incident.” (See “Pilot Counsel: Pilot in Command?” November 1995 Pilot.)
In this month’s case, the board may have succeeded in punishing what is arguably an errant pilot, but in the process of deciding the case, the board inadvertently gummed-up for us the shifting status of pilot in command. The board declared that a right-seat pilot, who was clearly not the pilot in command at the start of a flight, who accompanies the PIC, and who temporarily operates the controls of an aircraft, in this case to demonstrate a landing, then becomes the pilot in command. The decision doesn’t stop there. It goes on to declare that even in a more compelling circumstance—a right-seat pilot who is forced to take over control when the PIC panics and lets go of the controls—then becomes PIC with responsibility for the predicament the aircraft is in. This is certainly not the common understanding among pilots. Pilots believe that temporarily manipulating the controls does not necessarily make a person pilot in command. Just think of the situation of a flight instructor who is not acting as pilot in command but is demonstrating a maneuver to the PIC, or, more telling, an FAA inspector or designated flight examiner who by regulation is not the pilot in command, who temporarily manipulates the controls to demonstrate a maneuver or puts the aircraft in an unusual attitude for the pilot to recover. As declared by the NTSB, the PIC status can shift without any conscious decision of either pilot on board, but merely by the manipulation of the flight controls.
Here are the hard facts. The respondent met a woman visiting from Spain at the Tamiami Airport, near Miami, Florida. The woman held a Spanish commercial pilot certificate but had only 170 flight hours. She had come to the United States for three months to build flight time. The respondent was an experienced airline transport pilot and a former flight instructor with more than 5,000 hours. The woman rented a Cessna 172 at a Tamiami FBO where she had been renting airplanes for the last month or so. She asked the respondent to fly with her in order to obtain instruction in landing the aircraft. She rented the aircraft in her own name and did not list the respondent as an occupant, either as a passenger or a pilot. She preflighted the airplane, called the tower for permission to take off, and, occupying the left seat, flew the aircraft throughout the flight until the incident.
She intended to fly to Homestead General Aviation Airport to practice touch-and-goes. Before taking off, she programmed the Garmin GNS 430 GPS for what she thought was Homestead General Aviation Airport. Instead she mistakenly programmed the GPS for Homestead Air Reserve Base. The flight arrived after sunset at what the pilot thought was Homestead General. The airports are only seven miles apart. She performed a touch-and-go. The respondent pilot only then took over the controls, telling her that he was going to teach her how to land the aircraft. While preparing to execute a second touch-and-go, the aircraft was intercepted by a U.S. Customs Blackhawk helicopter. Customs directed the flight to land.
Obviously, she had flown the aircraft to the wrong airport, and in the process into Class D airspace. As a result, the FAA ordered the suspension of the respondent’s ATP for 180 days (later reduced to 90 days by the law judge). The FAA charged 1) that the respondent operated the aircraft in the Class D airspace of Homestead Air Reserve Base without establishing two-way radio communication with the control tower, 2) that he landed and took off without a clearance, 3) that before the flight, he failed to familiarize himself with all available information concerning the flight, and 4) that in general he was careless or reckless. On appeal to the NTSB, even though the respondent testified that he did not know that the aircraft was in Class D airspace when he took the controls to demonstrate a landing, the board affirmed all of the FAA charges.
The FAA, and eventually the board, believed that the respondent did something wrong (probably influenced by respondent’s after-the-fact claims of an emergency and an electrical problem), but seemed to be having difficulty framing the wrong in terms of a regulatory violation. Making the respondent a pilot in command finessed that difficulty.
In resolving the issue of which pilot was the PIC during the flight, the law judge found that the Spanish woman started the flight as PIC, but that when the respondent took over the controls, he became PIC. As PIC, “it was his duty to know where the aircraft was and to comply with all requirements applicable under the FARs to the conduct of the flight.” The full board, echoing the judge, specifically held that the “respondent was the PIC after he accepted responsibility and control of the flight…[and] when he assumed the status of PIC, it was the respondent’s duty to know where the aircraft was located, and to comply with all requirements applicable to the conduct of the flight.”
There was a dispute about the circumstances of the respondent’s assumption of the controls. That made the NTSB decision even more difficult for us—unnecessarily! According to the respondent, after being intercepted by the helicopter, the airplane was “shaking and pitching,” he saw panic in the [pilot’s] eyes, and that she started screaming about her U.S. visa and that they were going to throw her in jail. The respondent said that she lost “spatial orientation” and “just let go of the controls.” As a result, the respondent “grabbed the controls.” The board said that even if it believed the respondent, its “conclusion would remain the same.” In other words, even under the compelling circumstances described by the respondent, if true, the respondent nevertheless “assumed the status of PIC, with all of its incumbent duties and responsibilities.” Tough stuff.
So, pilots are on notice that if they are on board a dual-control aircraft with another pilot who is acting as pilot in command, and for a legitimate reason they manipulate the controls, even under compelling circumstances, such pilots are in jeopardy of being considered as pilots in command for purposes of finding regulatory violations. Another illustration of how “hard cases make bad law.”
John S. Yodice is the owner of a Cessna 310 and serves as legal counselor to AOPA.