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Who Has the Right of Way?

The simple answer isn't always the right one

Here is a good one for discussion the next time you and your flight instructor are talking about all things aviation, and the subject of "right-of-way rules" comes up. This comes from an actual event a few years ago.

Someone is landing on the same runway that you are taking off from, at the same time, though in the opposite direction and with a slight tailwind. Does the other aircraft have the right of way, or do you? The answer that you would find in the Federal Aviation Regulations/Aeronautical Information Manual (FAR/AIM) says that the aircraft "on final approach to land, or landing" has the right of way--simple enough.

But wait--there's more. The book also says, "an aircraft towing...has the right of way over all other engine-driven aircraft." Indeed, you are towing a glider off that runway; but alas, the aircraft landing still has the right of way to land. (The regs also give the right of way to an aircraft refueling another aircraft, but that consideration doesn't factor into our example.)

The plot thickens. The glider is already airborne. The AIM says, "a glider has the right of way airplane." This is getting confusing.

So, who really has the right of way here? I'll throw another log on the fire: The other airplane came in from a long and low straight-in visual approach to this nontowered airport. While an ideal assault tactic, it was not very helpful to those already using the airport's traffic pattern. Of all the pilots and crews working the gliders and other GA operators out there, no one saw the other aircraft on its opposite-direction final. "Preparatory to landing at an airport without a control tower...pilots should concern themselves with the [traffic pattern] indicator for the approach end of the runway to be used." This statement from the AIM may not be regulatory, but FARs 91.13, Careless or reckless operation, and 91.111, Operating near other aircraft, are. I do not believe the intent of the AIM statement was to check the indicator as you are touching down on the runway.

The radio calls made by the landing aircraft for positioning and intent would have been much more effective if its radios had been tuned to the proper frequency (we have probably all made that error before). The pilot humbly apologized later for this error. Keep in mind that radios are not required equipment in aircraft at nontowered airports. One of the advantages of flying at a nontowered airport is that there is no formal requirement for radio communications, which was a good thing since the towplane radio was in the shop.When you think about it, right-of-way rules are safety tactics during a lack of communication capability. When following proper procedures as outlined in the AIM, the lack of a radio should not be a detractor to safety. The proper use of radio communications is merely an enhancement to safety.

An aircraft that is landing has the right of way over an airplane taking off. The fact that no one saw or heard the other airplane until it was on short final, or that a "proper pattern" was not flown, does not alleviate anyone of his or her moral and regulatory responsibility to see and avoid.

All this radio stuff aside, the question still remains. Who has the right of way? The answer, as pilots (not lawyers or FAA employees), to the question of who had the right of way is this: "Who cares?" As pilots it is more important that we take proper action to avoid conflicts than to argue the issue. Who is at fault is irrelevant. Taking proper evasive action to see and avoid is all-important for survival. Knowing the correct actions in accordance with FAR 91.113 right-of-way rules, and allowing for a good measure of sound judgment, is far more useful than quibbling over minor technicalities while metal components bend and reshape themselves with a tumultuous roar.

After becoming aware of the situation, the towplane pilot flashed the landing lights, being a bit hesitant to abort the takeoff considering there was an airborne glider a fraction of a second behind and still attached to the towrope. (It is not a good thing to see a glider flying past the towplane window from behind, while the other airplane flies past from the front--that's a real ugly picture.)

With very little time to react, the towplane cut power. As the glider touched down, the towrope was released (at the same time as the glider pilot pulled his release) and simultaneously, both turned to the right and exited the runway into the grass. Once they were clear and parallel to the runway, the other airplane landed a wingspan or so away. This was the first time that the other pilot (and any of the three passengers onboard) saw any other aircraft operating at the airport. Keeping the glider in view, the towplane slowed and reentered the runway for the back-taxi to the FBO, passing the towropes outstretched on the runway en route.

Inside the air-conditioned FBO, the pilots calmly discussed the situation, walking away from the brief (and civil) discussion enlightened to many of the errors and oversights--not just in this situation, but in everyone's overall operating procedures. Any such situation should always be approached in a civil manner.

In light of that particular and peculiar situation, I would like to offer a review of the right of way rules from FAR 91.113, Right-of-way rules: Except water operations.

Inapplicability. Simply states that this section does not apply to aircraft while they are operating on the water--that is covered in FAR 91.115.

(b) General. It is always your responsibility to see and avoid other aircraft anytime you can see outside the windows. Regardless of the type flight plan filed, if you are able to see another aircraft, you (not air traffic controllers) are responsible for collision avoidance. While this paragraph does not define "well clear," it does say that you "may not pass over, under, or ahead [of the aircraft you are overtaking] unless well clear."

(c) In distress. This one is simple. If the other aircraft is in distress, it has the right of way over everyone--end of discussion.

(d) Converging. (Except head-on) The aircraft on the right has the right of way. Note that this only applies to aircraft of the same category, for example, airplane-airplane, glider-glider, airship-airship, and at the same altitude.

(1) Everyone (except an aircraft in distress) must give balloons the right of way. (2) A glider has the right of way over an airship, powered parachute, weight-shift control aircraft, airplane, or rotorcraft.

(3) Airships have the right of way over powered parachutes, weight-shift-control aircraft, airplanes, or rotorcraft. (It has always struck me as strange that something as maneuverable as a glider has the right of way over something as lumbering as airships.)

The regulation provides a "However" here that "an aircraft towing...has the right of way over all other engine-driven aircraft. Since there is no specification of "in flight," this should apply from the moment the glider (or banner) is first pulled by a towrope.

(e) Approaching head-on. Turn right, right now! No questions--just do it! (f) Overtaking. If it is in front of you, it has the right of way. Turn right, right now. Stay well clear of the aircraft you are overtaking. Be careful not to scare anyone. Keep in mind that if an aircraft suddenly appears in front of you, it will take several seconds to determine if it is heading toward or away from you. If the airplane is heading toward you, you've just used up most of your reaction time. This situation gets real ugly, real quick. Treat an overtake situation as if it were a head-on.

(g) Landing. An aircraft landing, or on final approach to land, has priority over all other aircraft in flight, or on the airport surface. Note that you cannot feed your ego by using this rule to force an airplane that just landed off the runway. I've seen pilots attempt this, and it's real scary.

If two aircraft are approaching to land at the same time, the lower aircraft has the right of way to land. Please, do not maneuver your aircraft to take advantage of this rule. If you are the higher aircraft, simply apply power, climb back to pattern altitude and very carefully re-enter the pattern. Be careful--pilots who dive for position really are out there.

Another previously mentioned regulation is FAR 91.111, Operating Near Other Aircraft, which says:

(a) "No person may operate an aircraft close enough to another aircraft as to create a collision hazard." Note that it does not state anything about "except by accident or negligence."

(b) Formation flying was an anticipated excuse for operating too close to another aircraft, so "they" penned in a statement that it is not a formation flight unless each pilot in command agrees in advance that it is. You cannot pass uncomfortably close to someone and call it formation.

(c) If you are carrying passengers for hire, you cannot fly in formation. Practice good scanning techniques. While in and approaching the traffic pattern, be aware of traffic flow and be more aware of the occasional salmon swimming upstream through the established pattern current flow. While on left base, for example, check right base for traffic. When landing, check for opposite-direction traffic taking off, or landing.

Know what actions you will take under these types of nerve-wracking situations, so that you can react quickly and correctly.

Also remember that most midair collisions and near-miss incidents occur on the nicest and clearest days. Most occur from the sides; think of gradual convergence, as if both aircraft are planning to pass over the same VOR at the same time and are approaching from almost the same direction. Develop and maintain good traffic avoidance scans for all phases of flight, not just the pattern.

Rand M. Sanders is a 7,500-hour ATP, CFII, and MEI with airline, commuter, corporate, air freight, and glider flight experience along with more than 5,200 hours as an Air Force aircrew member.

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