Greg Reigel's Aero Legal Services

Pilot In Command: The Ultimate Authority and Ultimately Responsible

By Gregory J. Reigel

© 2005 All rights reserved.

In light of some of the recent “high-profile” aircraft accidents, I thought now would be an appropriate time to discuss the authority a pilot has in operating an aircraft, as well as the responsibility that comes with that authority. As is often the case, the pilot and his or her actions as pilot in command (“PIC”) of the aircraft are primary areas for investigation and evaluation following an aircraft accident.

All pilots are aware, or at least should be aware of FAR 91.3(a) which states that “[t]he pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.” FAR 91.3(a) establishes authority for a PIC to exercise discretion and take actions in the operation of his or her aircraft, as well as responsibility for any and all actions taken by the PIC. This FAR has been relied upon by many an NTSB accident investigator in establishing the probable cause for an accident and by many plaintiffs’ attorneys trying to establish liability for an aircraft accident.

For purposes of this article, I would like to look at the “authority” and “responsibility” elements of FAR 91.3 in a little more detail. Also, the discussion here will be focused on FAR Part 91 operations, as opposed to FAR Part 135 or Part 121, which both have similar regulations and requirements relating to a PIC’s exercise of authority and responsibility for his or her actions.

Final Authority

Under FAR 91.3(a), the PIC has the final authority as to how he or she operates the aircraft. But what does this include? Well, FAR 91.3(a) includes all aspects of operating an aircraft: pre-flight planning, the airworthiness of the aircraft, safe operation of the aircraft and compliance with all regulations applicable to the particular flight operation, to name a few.

Compliance with the FAR’s is not a one-size-fits-all situation, however. For the most part, the PIC has authority and discretion as to how he or she operates the aircraft. Yet this authority must always be exercised within the bounds of and consistent with the regulations applicable to the particular operation in which the PIC is engaged.

Emergency Authority

In addition to establishing the PIC’s “final authority,” FAR 91.3(b) specifically authorizes that “[i]n an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.” An emergency is a situation that could jeopardize the safety of a flight. The emergency situation cannot be of the PIC’s own making. That is, it must be unforeseen and unavoidable by the exercise of sound judgment. The PIC is responsible for making the determination as to whether an emergency exists and has the authority to take responsive actions that are reasonable under the circumstances.

Also, it is important to know that a PIC does not necessarily have to advise ATC of the existence of an emergency. Although in practice, declaring an emergency to ATC, if you are able, is a good idea since ATC will then give you the benefit of priority handling and additional assistance that may be needed to handle the emergency.

Whether an emergency existed, whether the situation was of the PIC’s own making and whether the PIC’s responsive actions were reasonable are all factual determinations. These determinations are usually made after the fact in the context of an investigation, enforcement action or civil lawsuit with the goal of establishing responsibility. Ideally, this “hindsight” analysis takes into account the entirety of the situation in which the PIC found him or herself. Unfortunately, this is not always the case.

Ultimately Responsible

Although a PIC has final authority as to the operation of the aircraft, this authority comes with a price: Responsibility. FAR 91.3(a) mandates that the PIC “is directly responsible for…the operation of that aircraft.” This rule establishes a PIC’s responsibility and, in the context of an aircraft accident, is relied upon by third-parties who may be injured or damaged by a PIC’s operation of an aircraft as a basis for recovery.

In the civil lawsuit that invariably follows an aircraft accident in which someone is injured or damaged, the initial “finger-pointing” is in the direction of the PIC. Plaintiffs attempting to recover for injury or damage will allege “pilot error” in various forms including failure to comply with regulations, lack of competence or simply the exercise of poor judgment.

Other parties may also be included as defendants in the lawsuit: The aircraft owner, if different than the PIC, may be included under a permissive use statute or a negligent entrustment theory; the company operating the aircraft may be included on an agency theory or for negligent hiring or training of the PIC. However, to establish liability against these parties, the underlying issue will still be whether the PIC failed to properly exercise his or her authority in operating the aircraft.

In the final analysis, a PIC’s responsibility for an aircraft accident will be determined by whether he or she complied with the regulations applicable to the operation of the aircraft and whether the PIC’s actions were reasonable under the circumstances. And make no mistake, if the PIC failed to comply with the regulations or act reasonably, the PIC likely will be held ultimately responsible for the injury or damage that resulted from an aircraft accident.

Operating an aircraft is one of the greatest privileges a person can have. Although rules exist to ensure that aircraft are operated safely, a PIC is entitled to quite a bit of discretion in how he or she exercises this privilege. But at the end of the day, a PIC will also be held accountable. Prudence and good judgment with an unflinching view towards safety will keep a PIC safe and help protect him or her from ending up in a situation in which the PIC is held accountable for a third-person’s injury or damage.