Page 14 - Volume 12 Number 2

The most common two-pilot situation in a Part 91 operation is flight instruction. In the case of a private pilot who is taking instrument lessons, if the flight is operated IFR (even in severe clear), the instructor must be PIC. A non-instrument rated pilot is not legal to operate IFR, period. To make things more interesting, how about a private pilot under the “hood” in VFR conditions with an instructor? Again, since the pilot receiving instruction is not rated to operate solely by reference to the instruments, the instructor has to be the PIC. In all examples so far, a mishap would almost certainly fall 100 percent on the instructor, and none on the airman receiving instruction.
Similarly, if one pilot does not possess a current medical certificate, and the only other pilot does, the only medically qualified pilot will be deemed the PIC. Interestingly enough, some pilots ask a buddy to be their “safety pilot” to build some hood time, but forget to verify that their buddy has a current medical. In this case, who would be PIC? Answer: nobody! No pilot was independently qualified to operate the aircraft, the entire flight would be illegal, and we would expect some certificates to be pulled.
Now, let’s spice it up a bit. An ATP who is properly rated and current in all respects is getting a flight review from an instructor. Clearly, since the pilot receiving instruction could be PIC even without the instructor, does the instruction matter? Established
NTSB precedent says YES: “\[r\]egardless 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 PIC.” Admin. v. Hamre, 3 NTSB 28 (1977). This principle was reaffirmed in Admin. v. Walkup, 6 NTSB 36 (1988). Flight instructors, time to review your personal insurance coverage.
Who is PIC during a check ride? The examiner is required to hold a current flight instructor certificate, so common wisdom would suggest they would be presumed to be PIC as well. With the exception of a private check ride given to a student pilot, FAR §61.47(b) expressly states that examiners are not the PIC; end of discussion.
Another common situation is two pilots, both rated and current, but neither is a flight instructor. They share stick and radio time interchangeably, so which one is PIC? First, let’s be smart here and ask, “Is one of them not covered by that aircraft’s insurance?” If not, it is strongly recommended that only the covered pilot perform takeoff and landing, and that there be a clear understanding before flight that PIC is the covered pilot. An email exchange to put this on the record before takeoff isn’t a bad idea. The last thing any pilot needs is a prop strike where the carrier won’t pay. Insurance coverage aside, what would the FAA or NTSB say?
Assuming there are no insurance issues, and the usual circumstances where neither pilot makes any express indication of PIC before flight, the determination of which pilot is PIC will rest on the facts and circumstances of the situation. For example, if there is a TFR incursion, the FAA will likely find the PIC to be the one who had the controls (or the last one to engage the auto pilot). However, what if the PIC had delegated the pre-flight briefing or in-flight navigation functions to his buddy, who is not PIC? The answer is: regardless of who is determined to be PIC, both pilots face liability. In Admin v. Thomas, N.T.S.B. Order No. EA-4309 (1994), the FAA held responsible the non-PIC pilot for a near gear-up landing: “An aircraft \[that\] requires only one pilot does not support a conclusion that a second pilot (or even a non- pilot) participating in the inflight operations is not accountable for his own actions.”
Reading the Thomas case carefully, it further narrows the affirmative defense doctrine that
12 • KING AIR MAGAZINE
FEBRUARY 2018