Legal but not safe
There is no regulation prohibiting poor judgment
Also there was a trio of flight instructors waiting for the morning marine layer—June gloom, as the locals call it—to burn off and enable them to get on with the business of instructing. I couldn’t help overhearing their conversation, which became animated at times. It was a discussion about the concept that just because something is legal does not necessarily mean that it is safe.
The first example mentioned was the zero-zero takeoff. There is no minimum ceiling or visibility requirement for an instrument pilot operating under Part 91 to make such a takeoff—and there are pilots who claim to do this, an operation fraught with peril. Another example was making a seaplane landing at night—and there are those who assume this risk. And then there are those strictly VFR pilots who fly above extensive, low-lying cloud layers in single-engine airplanes even when over mountainous terrain. Yes, these operations are legal; there are no regulations prohibiting them. But are they safe? I don’t think so, but mine are subjective opinions. Some pilots obviously disagree.
There are lots of other things we are allowed to do that are not particularly safe. Consider the regulation allowing us to plan a daytime VFR flight with only a 30-minute fuel reserve. This means we are allowed to plan landing at our destinations with only two usable gallons in each tank of a Cessna 172, for example. For me, that’s not enough. My personal goal when planning cross-country flights is to land with an hour’s worth of fuel on board.
Other operations that are legal but not necessarily safe include scud running, flying into challenging mountain airports without preparation and training, and carrying passengers while minimally current. With respect to this last operation, a pilot who hasn’t flown for more than a year, for example, would be legal to carry passengers on a cross-country flight after making only three solo takeoffs and landings. Not smart.
One of the instructors eventually asked, “If a pilot does something that is absolutely legal but is nevertheless hazardous, might not the FAA go after him for operating in a careless or reckless manner, a violation of Part 91.13 of the regulations?”
Interesting question, one that prompted some research.
These days, the FAA generally alleges a violation of 91.13 only in conjunction with another violation, such as buzzing someone’s house or busting Class B airspace. It goes without saying that the FAA seems to automatically tack on a violation of “careless and reckless” to any other accusation it makes against a pilot.
This does not mean, however, that a pilot could not be charged with an independent violation of 91.13. There was a time when FAA made this allegation when a pilot failed to extend the landing gear prior to landing, for example. Because the regulations do not require a pilot to extend the gear prior to landing, a careless and reckless allegation was the only way for the FAA to otherwise cite the pilot.
Today, however, the FAA apparently does not accuse a pilot only of careless and reckless operation unless his behavior is particularly egregious, and the agency believes that the accusation can be proven. Assume, for example, that a private pilot took three passengers on a night flight along the shoreline of the Pacific Ocean abeam Malibu, California. Assume also that he paralleled the coast while 3 miles over the water and flew so low that he had to use landing lights to avoid a water landing. It would be difficult to imagine anything much more deserving of a careless and reckless allegation—even though the pilot was not in violation of any other regulation. (There is no limit to how low a pilot may fly over water so long as he does not fly closer than 500 feet to persons or property.)
In a similar but factual case, the airplane inadvertently did land in the water. The rear-seat passengers were unable to exit the sinking aircraft and perished. This attracted the attention not only of the FAA but also of the Los Angeles County District Attorney, which brought forth criminal charges against the pilot.
(It is noteworthy that Part 91.13 applies only when the pilot endangers persons or property. No one seems to care if you endanger only yourself.)
Pilots need to acknowledge that what is legal is not necessarily safe, and that there is no regulation prohibiting poor judgment. We need to abide by common sense and maintain a low tolerance for risk.
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