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Instructor liable just for being present in the aircraft?

@MedEwok, since you were not qualified to be PIC during the check ride, but the FE was, he was PIC for the flight.

There is a NfL dating 30.03.2017 on that topic, the NfL 2-330-17. If you want to look it up, here’s a link.

EDXN, ETMN, Germany

CharlieRomeo wrote:


@MedEwok, since you were not qualified to be PIC during the check ride, but the FE was, he was PIC for the flight.

Thanks for the link, you are correct.

Low-hours pilot
EDVM Hildesheim, Germany

I’ve had a FE tell me with a straight face that since I passed the skill test, I should log the flight as PIC (which I understand as “I was retroactively PIC for that flight”). But had I failed the skill test, I would have had to log it as dual time.

ELLX

The UK has as similar policy – a passed skill test is logged as PIC under supervision (PIC U/S). This is probably the most accurate description of what is going on.

Biggin Hill

Cobalt wrote:

The UK has as similar policy – a passed skill test is logged as PIC under supervision (PIC U/S). This is probably the most accurate description of what is going on.

Sure, but during the flight the examiner is P1 and there is no doubt about it.

EGKB Biggin Hill

In the US, you are PIC during a checkride, the examiner even has to ask you to take the controls. This happened many, many years ago during mine, he wanted to show me how the US Navy flew a maneuver (he was ex-Navy). I passed, btw.

Timothy wrote:
“When I am flown as passenger, I make it excruciatingly clear that that is my only role, and will not engage in any decision making or suggestions.”

Well, I do not know if my response to this is thread drift, but I’ll shoot anyway.

I honestly have some difficulties understanding the reasons behind Timothy’s thinking: from my point of view it seems as someone is deciding that liability take priority over safety.

If, as a pilot, I am carrying someone in the front seat of a small GA plane (even the back seat might count, if close enough to the cockpit…) my priority is to make my job as easy as possible: I know that I will eventually screw up (and did in the past) Therefore I rather get
as much “help” as possible according to my likes and my set of rules.

I encourage cooperation and inputs, even from non pilots. I always brief that there are no stupid questions and I encourage to ask or point out something if relevant and/or safety related, even from pax. I clearly show my sign for “briefly shut up, I am busy” and off we go.

As a guest (very rarely) in GA aircrafts, I clearly point out that I am glad to help and will help if the need arise. If that help is not welcome I will not jump in. Easy peasy.

It mights make things straight forward the fact that I am always the most experienced pilot on whatever plane we are flying and also that I am flight instructing on the line and in GA…

To sum it up: I rather live and waste money on a lawyer then, being rich six feet under…

Cheers

@lowandslow, you miss my point. I think that the absence of clear command is dangerous, this is not a matter of legality.

I have already explained this further up the thread, so I won’t go into detail again, but suffice it to say that behaviours change when there is not a clear command gradient, most GA pilots are not trained for multicrew operation, they rarely have proper SOPs etc. During normal flying they mostly sort of get away with it, because there is time to sort out the muddles, but in an emergency there needs to be a clear command structure. There are plenty of crashes recorded where either both pilots were validated in their risk taking by the other, or there has been interference in command.

This works the other way round, as well. For example, I fly for a wealthy private owner in his own aircraft. He has a lapsed professional licence and is not up to date with technology, so I also train him on the aircraft. I have to make it very clear that although he owns the aircraft, the mission and (to some extent) me, I am P1 and I will take decisions. We have quite robust discussions on the subject. I don’t want him to end up like the Polish Government.

EGKB Biggin Hill

Flying with a high-hour passenger and the resulting implicit/unintended transfer of responsibility is a very interesting topic, and IMHO a very big issue in GA, particularly among very low hour pilots.

I usually suffer from it when I fly with an instructor. I screw up just about everything, starting with going up the wrong taxiway at Shoreham

One previous thread.

Administrator
Shoreham EGKA, United Kingdom

Peter wrote (#01):

I recall reading of cases in the USA where an instructor (a CFI) flying as a passenger was held responsible post-accident by the FAA – because he was an instructor.

For the CFI to be regarded as pilot-in-command there must generally be an element of instruction, Administrator v. Hamre (3 NTSB 28, 31 (1977)):

Regardless of who is manipulating the controls of the aircraft during an instructional flight, or what degree of proficiency the student has attained, the flight instructor is always deemed to be the pilot-in-command. As such, he is the final authority on, and bears the ultimate responsibility for the safe outcome of the flight. A flight instructor’s function is to teach. If he 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 has, in our opinion, exhibited carelessness within the meaning of FAR section 91.9.

A decade later this condition, worded to explicitly cover promised instruction, was repeated in Administrator v. Walkup (6 NTSB 36, 37 (1988)):

… The mere fact of holding designation as certificated flight instructor doesn’t mean that you are, ipso facto, pilot-in-command if you’re aboard the aircraft. That is, possession of that certificate doesn’t magically convert you into pilot-in-command as soon as you step aboard any particular aircraft, even if it is one in which you are type rated or current in. What makes the flight instructor the pilot-in-command is when he assumes that position as pilot-in-command by giving or agreeing to give flight instruction.

In 1995 another case, Administrator v. Strobel (NTSB Order No EA-4384 (1995)), evoked the essential ingredient of “agreeing to give flight instruction” when a flight instructor, Strobel, offered to conduct a superfluous check-out in a Tomahawk for an English pilot who’d never flown one. Strobel denied undertaking the flight as a flight instructor but admitted that the English pilot may have thought otherwise. Near the end of the flight the English pilot was warned by Strobel that the approach was dangerously low. The English pilot responded by adding power, an excessive amount, leading to a late touchdown. Although sufficient energy and runway remained to get airborne again the English pilot attempted to stop the aeroplane in what little runway was left. The aeroplane exited the airfield through a fence before coming to rest in a corn field. Strobel was deemed to have been the pilot-in-command because he was the certificated flight instructor on an instructional flight and so he was consequently held responsible. The finding of carelessness was dropped on appeal because the board accepted Strobel had had neither reason to expect, nor time to react to, the student aborting the touch-and-go.

The muddled capacities in Strobel may as well have been the subject of a later appeal to the board in Administrator v. Moelsein (NTSB Order No EA-5354 (2008)), reflecting on Administrator v. Walkup (6 NTSB 36, 37 (1988)),

As an ATP and CFI, respondent has the responsibility to make sure that he and the participants in the flight agree on [ ] a designation of PIC. This, along with our holding that the instructor is always the PIC, promotes safety by avoiding confusion in the cockpit.

Noe wrote (#02):

It always seems to me you can only have one PIC, and that PIC can only be designated before the flight. Responsibilities need to be clearly defined before the flight.

This sensible policy may run into difficulty when there is, or may be, a sudden change of pilot-in-command in flight, Administrator v. Moelsein (NTSB Order No EA-5354 (2008)):

… we granted a student pilot’s appeal in Administrator v. Rajaratnam, NTSB Order No EA-3497 (1992), based on the other pilot’s statement that, as the senior pilot, he would have taken over command in an emergency situation, holding that: “[W]hile respondent may have been the pilot in charge of the physical management of the aircraft, [the other pilot] was the pilot who possessed the ultimate responsibility for the safety of the operation. … [That] made him the PIC, as that term is defined in the FAR.”

In another appeal Administrator v. Corredor (NTSB Order No EA-5322 (2007)), citing Administrator v. Jeffreys (4 NTSB 681, 682 (1982)),

We have also held that, whether or not actually exercised, a pilot has ultimate decisional authority for control or direction of a flight if his responsibility includes the authority to give directions on how to fly the aircraft and to assert control of the aircraft. Here, respondent’s assumption of control when he determined that such control was necessary leads us to conclude that respondent ‘possessed the ultimate decisional prerogatives traditionally associated with service as pilot in command.’

Corredor, an ATP certificate holder, had held himself out as a flight instructor and a “real experienced pilot” to a Spanish tourist visiting Florida for hour building. The latter, Ms Hernandez, assumed the role of pilot-in-command of a rented aeroplane carrying Corredor when it proceeded to what the Spaniard thought was Homestead General Airport for touch-and-goes, but she had in fact performed one unauthorised touch-and-go at Homestead Air Reserve Base. Corredor took control of the aeroplane when Ms Hernandez “let go of the controls after the Blackhawk helicopter arrived and forced them down.” The imagination can be polished by Corredor himself: “He testified that, after being intercepted by the helicopter, the airplane was ‘shaking and pitching,’ he ‘saw panic’ in Ms. Hernandez’s eyes, and she ‘started screaming about her Visa, they were going to throw her in jail.’” On appeal the board, upholding the suspension of Corredor’s certificate, held that “when he [Corredor] assumed the status of PIC, it was respondent’s duty to know where the aircraft was located, and to comply with all requirements applicable to the conduct of the flight.”

In spite of the long-standing position of the board in finding a certificated flight instructor as the pilot-in-command on an instructional flight, it has still upheld administrative law judge findings which hold another pilot responsible for regulatory violations. This is illustrated in Administrator v. Blum (NTSB Order No EA-5371 (2008)) in which a student, who was undergoing SR20 transition training with a CFI, was found to be responsible for an ADIZ bust and entry without clearance into class B airspace because he had been the pilot flying or operating the aeroplane. On appeal the board responded “… the decision in this case does not rest on the determination of who was the PIC. … By way of illustration, as a qualified, certificated pilot and, here, the flying pilot, respondent had an independent duty to comply with the requirements of the airspace in which he operated.”

Noe wrote (#07):

… my understand is that in a US civil court if someone could convince a jury that the instructor, by his inaction (while he was capable to do so) contributed to a loss to the estate of the other people, then he could be convinced to pay some damages.

It’s worse than that. At least one jury apportioned negligence to a non-pilot passenger who had the misfortune of being involved in a fatal accident. See Newberger v Pokrass, 33 Wis 2d 569 (1967):

The appellants also contend that Newberger’s [a passenger] negligence was equal to the negligence of the deceased pilot [Pokrass] as a matter of law, whereas the jury apportioned only 15 percent of the total negligence to Newberger and 85 percent to the deceased pilot. The apportionment of negligence is a jury question,2 and the credible evidence standard is to be applied in reviewing jury verdicts on apportionment.3

Under these rules, the jury’s apportionment of negligence is supported by credible evidence. Only two acts of conduct of the plaintiff [Newberger] could be considered negligent. The first was falling asleep and this was probably the basis of the apportionment. The plaintiff could possibly have prevented the accident by remaining awake. On the other hand, Pokrass was an accomplished pilot used to flying at night. Moreover, plaintiff Newberger had no knowledge of how to fly a plane, nor could he have exercised any control over the handling of the plane. The second reason the plaintiff could have been guilty of contributory negligence was in going on the trip at all under the circumstances. However, if plaintiff chose to remain in Wausau, he would have been all alone with no transportation home and no lodging for the night. Moreover, plaintiff had confidence in Pokrass’ judgment. The jury’s apportionment of negligence is not so grossly disproportionate that the appellants are entitled to a holding of equal negligence as a matter of law.

To put the lunacy of this jury decision into context consider that Newberger “went through a fourteen-hour ordeal which involved much physical and mental suffering. He was thrust into a bitterly cold environment with no that and no gloves, and only light tattered clothing for protection. In the crash he suffered seven fractured ribs, severe lung damage from smoke inhalation, pneumonia, and first and second degree burns to his hands, face, head and ears. Mobility was achieved with great difficulty and breathing was very painful. [He] was alone throughout the night in this barren environment covered by a foot of snow, and he testified that he watched the bodies of his friends burn. Over twelve hours later he struggled almost a mile to a road where he almost gave up his bid for survival before he was rescued.” https://law.justia.com/cases/wisconsin/supreme-court/1967/33-wis-2d-569-6.html

Timothy wrote (#48):

I think that the absence of clear command is dangerous, this is not a matter of legality.

An excellent point.

Last Edited by Qalupalik at 30 Jan 04:23
London, United Kingdom
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