One of the great and reoccurring mysteries of aviation is the question of who was the pilot in command (PIC) of an aircraft during flight.
The answer is often a key issue in regulators’ enforcement actions, government aircraft accident investigations and post-accident litigation. Determining the PIC is even more difficult when a crewmember is killed or seriously injured as the result of the mishap.
Who was the PIC when an accident or alleged violation of flight regulations occurred is often debated between counsel. Although U.S. Federal Aviation Regulation (FAR) 91.3 states that “the pilot in command of an aircraft is directly responsible for… the operation of that aircraft,” it does not specify who the PIC is. FAR Part 1.1 defines the PIC as the person who “has final authority and responsibility for the operation and safety of the flight; has been designated as pilot in command before or during the flight; and holds the appropriate category, class and type ratings, if appropriate, for the conduct of the flight.”
Notwithstanding that definition, the FAA has said (back in 1979) that no FAR specifies who the PIC is in any given situation. Consequently, a determination of the PIC from a legal perspective is a question of fact, not of law, which is generally determined on a case-by-case basis.
As noted, the PIC is “directly responsible for the aircraft’s operation” and “safety of flight.” Accordingly, a determination of the PIC is an essential element of an alleged violation and a critical fact in civil or criminal litigation involving aircraft operations.
Not surprisingly, controversy often arises regarding determination of the PIC in cases involves flight training, when multiple pilots are in an aircraft with dual controls.
In 1977, the U.S. National Transportation Safety Board reviewed an FAA order revoking a pilot’s flight instructor certificate following an attempted downwind takeoff wherein the aircraft struck a tree and made a forced landing in a pond past the runway. Challenging that order, the instructor argued that since his student had been certificated as a private pilot and was operating the aircraft controls, the student was the PIC and therefore responsible for the flight’s operation.
The NTSB rejected that argument. It ruled that regardless of who is at the controls during an instructional flight, “the flight instructor is always deemed to be” the PIC “and bears the ultimate responsibility” for the flight’s safe outcome.
The NTSB further reasoned that if an instructor permits a flight to be placed in a situation where a mishap is inevitable, or even where the flight is subjected to potential danger, he or she has exhibited carelessness under FAR 91.9.
Such actions and reviews would appear to impose “liability without fault,” under which neither an instructor’s greatest care nor a student’s gross negligence can save the instructor from liability. But the NTSB has refused to impose such an extreme legal standard on flight instructors.
In a 1995 case, the FAA sought to suspend a flight instructor’s certificate following an accident in which the instructor was conducting a “check-out” flight for an experienced pilot. While performing a touch-and-go operation, the student applied full power after touchdown. Then, without warning or direction from the instructor, the student reduced power and applied full braking with only 300 ft of remaining runway. The aircraft crashed through a perimeter fence and ran another 400 ft into a cornfield.
Refusing to affirm the FAA’s suspension of the instructor’s certificate, the NTSB said although flight instructors are expected to do “all things possible for the safety of the flight,” they are not held liable for the safe outcome of the training flight. Despite the instructor being recognized as PIC of the flight, the NTSB said, an experienced pilot’s unexpected actions at a critical moment in a critical phase of flight made it impossible for the instructor to prevent the accident.
Since the instructor is usually deemed the PIC during a training flight, he or she owes the student (regardless of level of experience, proficiency or certification) a high duty of care. Only the student’s intentional and unforeseeable actions that make it impossible for the instructor to recover will protect the instructor from liability from an FAA enforcement action or litigation.