2 PIC's, who's the Responsible Party

[dustyblue]

I was reading this article over at AOPA about the liability of a CFI: http://www.aopa.org/asf/publications/inst_reports2.cfm?article=6047

And it raised several questions in my head... Avoiding the more questionable situations illustrated in the article involving pilots flying solo, my biggest question has to be who bears financial responsibility for the aircraft when there are 2 PIC's in the cockpit, in other words, who's responsible hold ultimate responsibility for an incident that does damage to the aircraft be it a prop strike, broken landing gear, gear up landing, airfram damage, etc...

Based on the article, it seems to indicate in most jurisdictions a CFI is the ultimate authority and PIC anytime they are acting in their capacity as a CFI and short of the "student" intentionally causing an incident, they would therefore bear the primary burden of financial responsibility for damages done to people/property (including the aircraft).

Would you agree or disagree?

Here are some examples I can think of and my personal thoughts on the situation:

1. A rated PPL with an in-date BFR flying a review for the BFR

I'd argue the PPL is the PIC/responsible party in this case as they are duly rated for the aircraft flown, in date and a BFR is conducted in a similar manner to a checkride (the expectation is the CFI is ostensibly only there as an observer and to tell the pilot which maneuvers are to be demonstrated, not how to do them)

2. A rated PPL with an out-of-date BFR flying a review for the BFR

Although similar to number 1 in that the CFI is technically only supposed to be an observer, I'd argue the CFI is the PIC/responsible party in this case as the PPL is no longer current and would not be able to exercise the privileges of PIC without the CFI's presence.

3. A rated PPL flies in an aircraft requiring an endorsement or type rating (Hi-Perf, Gross Weight 12,500+, Tailwheel, Complex, Jet, Multi, Sea, etc).

I think the instructor would hold financial responsibility for the aircraft until the PPL has been endorsed or released for solo flight for the aircraft, regardless of the hours the PPL has in the type or as total hours. There is nothing in the FAR that would prevent a non-rated student pilot from training in any of the above aircraft (in fact, many students start on a tailwheel) and until you are endorsed for solo the time would generally not be logged as PIC and thus the CFI is responsible for the aircraft.... The fact that you are a PPL that allows you to fly other types of aircraft solo and to log PIC anytime you are the sole-manipulator of the controls doesnt change the fact that the CFI is logging PIC time as the "responsible" party rated for the type.

This is similar to the argument for number 2... As the PPL is not appropriately rated/endorsed for the type of aircraft, they are unable to truly operate as PIC as the CFI is required to be present and even if they have more total hours than the CFI, they are still a student for the purpose of the aircraft involved and thus not truly PIC.

4. A rated PPL working on their instrument rating or a rated PPL/IFR requires an IPC

In both cases the CFI is not only acting in their capacity as an instructor but they are also acting as the safety pilot and thus have final control of the aircraft. For the rated IFR pilot demonstrating an IPC, this goes back 2 where the pilot would not be able to exercise PIC privileges in this manner without the CFI's presence.

5. A rated PPL/IFR working on commercial/ATP/etc rating.

In this case I'd argue this is most like scenario 1 and the CFI therefore should not hold financial responsibility as the "student" is duly rated, in date and able to perform the PIC duties without the CFI. In this case the CFI is there more to act as part of the flight crew and assist the PIC. The instructor is there to keep the "student" on task while providing input and critiques on the PIC's fly abilities than for base instructional purposes.


The last 2 are the more difficult to gauge in my opinion as the situations get a little more grey:

6. A rated PPL flying a "new" aircraft to meet insurance requirements

This is similar to the argument for number 2 and 3 but a little more grey... In theory, a PPL in this case could exercise PIC without an instructor in the aircraft they just would not be covered by insurance (I say in theory as Im assuming no sane person would actually do this and jump in a plane type they've never flown before without at least some time learning its systems and flight characteristics with someone who know's the aircraft). The hiring of a CFI to fly with you until you are covered by insurance would seem to imply the CFI is the responsible party until such requirements are met.

7. A rated PPL flying a "checkout" to meet insurance requirements.

This is similar to the argument for #6 but it differs in that the PPL has experience in the type, make and model of aircraft being flown which adds a little bit more onus on the PPL. That being said, its still implied the CFI is the responsible party until they sign off on your checkout by virtue of requiring the checkride. In addition, I have only been on a small handful of checkrides where the instructor has remained silent when it comes to the flying of the aircraft and to me, as soon as the instructor leaves "critique mode" and enters into "instruction mode," they have become the responsible party.

What are your thoughts? Do you agree/disagree?

 

[poadeleted20]

I was reading this article over at AOPA about the liability of a CFI: http://www.aopa.org/asf/publications/inst_reports2.cfm?article=6047

And it raised several questions in my head... Avoiding the more questionable situations illustrated in the article involving pilots flying solo, my biggest question has to be who bears financial responsibility for the aircraft when there are 2 PIC's in the cockpit, in other words, who's responsible hold ultimate responsibility for an incident that does damage to the aircraft be it a prop strike, broken landing gear, gear up landing, airfram damage, etc...

Your question assumes that there can be two pilots in command in the same cockpit at the same time, and that isn't possible. The PIC is by regulation:

"the person who:
(1) Has final authority and responsibility for the operation and safety of the flight; [and]
(2) Has been designated as pilot in command before or during the flight;"

Please focus on that definitive article "the" -- that means one, and only one, PIC at a time.

Based on the article, it seems to indicate in most jurisdictions a CFI is the ultimate authority and PIC anytime they are acting in their capacity as a CFI and short of the "student" intentionally causing an incident, they would therefore bear the primary burden of financial responsibility for damages done to people/property (including the aircraft).

From an FAA enforcement perspective, that is true -- the Hamre doctrine adopted by the FAA and upheld by the NTSB says that any time an instructor is giving flight training, the instructor is "deemed" to be the PIC for the purpose of any enforcement action regarding any violation which takes place. Of course, just as airline co-pilots may also be held accountable when the captain violates a rule, that doesn't necessarily let the trainee off the hook. What the Hamre doctrine does is guarantee the instructor will be held accountable for any regulations violated during a training flight.

In terms of financial responsibility, it's another story completely. How a civil court jury will apportion liability for damages or injury is not a matter for the FAA or the FAA's regulations. The decision will be made based on the jury's perception of whether or not the plaintiff demonstrated that:

1. The person being sued (either the instructor, the trainee, or both) had a duty to be careful, and
2. That person failed in that duty, and
3. Damage/injury occurred, and
4. That failure was the proximate cause of the damage/injury.

This can result in some very strange results. For example, in one famous case, a non-pilot passenger asleep in the right seat was held contributorily negligent for a crash when the pilot fell asleep and the airplane bellied in. The reasoning was that the passenger knew the pilot was tired, and thus had a duty to maintain vigilance over the pilot to prevent the pilot from falling asleep. OTOH, in the Strobel case, the NTSB said the instructor in the right seat had been not been careless/reckless when the trainee (a rated pilot) in the left seat chopped the throttle after going to full throttle to initiate a balked landing resulting in going off the end of the runway and causing substantial damage to the aircraft. The NTSB's reasoning was that while the instructor may be "deemed" to be the PIC, s/he cannot be held strictly liable for all the possible errors a trainee might make in a situation where there is no time to recover from that error.

So, in all six of your cases, the FAA would "deem" the instructor to have been the PIC for the purpose of any enforcement action over any violation which occurred, but the trainee might still eat a violation, too, if the FAA felt s/he should have detected and done something to try to prevent it. However, there's no way to say in advance whether or not the instructor or trainee or both will be held financially liable in a civil court for aircraft damage in any instructional situation. What is almost certain to happen is the aircraft owner and/or any injured third parties will sue everyone and then let the court sort it out.

And that's why I carry both the AOPA Legal Services Plan (CFI level) and non-owned aircraft hull insurance for my instructional activities.

 

[dustyblue]

Your question assumes that there can be two pilots in command in the same cockpit at the same time, and that isn't possible.

Actually, my question more specifically is who THE PIC would be when a CFI, hired/operating in their capacity as an instructor and therefore logging PIC time, is flying with a pilot operating as a "student" but also logging PIC time as the pilot at the controls.

As you've noted, there is only one PIC who holds responsibility for the aircraft and flight however, both pilots are legally able to log PIC time.

 

[poadeleted20]

Actually, my question more specifically is who THE PIC would be when a CFI, hired/operating in their capacity as an instructor and therefore logging PIC time, is flying with a pilot operating as a "student" but also logging PIC time as the pilot at the controls.

Since that's governed by a different regulation (61.51) than the issues about which you did ask, that's an entirely separate question from who is the PIC and who would be held financially responsible for whatever happens.

Let's start by remembering that "rated" means only the ratings you find on the back of your pilot certificate, and does not "additional training endorsements" or other logbook endorsements like a flight review. The answer will be then found in 14 CFR 61.51(e)(1)(i) which says you can always log all the time you are the sole manipulator of an aircraft in which you are rated (or for Sport Pilots, in which you have privileges), with one small exception, the trainee in all six of your scenarios logs it all as PIC time regardless of whether or not s/he was the PIC. Likewise, the instructor logs PIC time in all six cases under 14 CFR 61.51(e)(3) as an authorized instructor giving training, again, regardless of who is the designated/agreed PIC. Yes, that means in all six cases, both instructor and trainee will be logging PIC time for the entire flight even though only one was actually the PIC.

As you've noted, there is only one PIC who holds responsibility for the aircraft and flight however, both pilots are legally able to log PIC time.

The one exception is scenario #3, and that only when a type rating is required to act as PIC in that aircraft but the trainee does not yet hold that PIC type rating (an SIC type rating does not count for this purpose). Since "rated" includes the type rating (if one is required for that aircraft), the trainee is not "rated" in that aircraft even if she does hold the requisite category/class ratings. In that case, the instructor (who must have the type rating to give training in that aircraft) is required to be the PIC since s/he is the only one qualified to be PIC. Further, since the PPL trainee is not "rated", and does not qualify to log PIC time under any of the other subparagraphs of 61.51(e), s/he cannot log PIC time for that type rating training flight.

 

[James331]

With how insurance Cos and lawyers work, it also depends on who has the largest bank account and assets and insurance policy.

As a ATP/CFI (both current) I figure if I'm sitting upfront for any reason on a pt91 flight and something happens it's somehow going to be fully to partially my fault. Thus I'm always in CFI mode when I'm in the above situation, might as well try to make a save if I'm going to get blamed ether way.

 

[midlifeflyer]

Actually, my question more specifically is who THE PIC would be when a CFI, hired/operating in their capacity as an instructor and therefore logging PIC time, is flying with a pilot operating as a "student" but also logging PIC time as the pilot at the controls.

As you've noted, there is only one PIC who holds responsibility for the aircraft and flight however, both pilots are legally able to log PIC time.

...which is why who is =logging= PIC is completely irrelevant to the question of who is PIC.

Also don't make the very common (which is why it's listed in my signature block) mistake of thinking that just because the person acting as PIC is ultimately responsible, that the person acting as PIC is the only person responsible.

But to answer your question, it depends. While a CFI giving instruction will always be held by the FAA (and most likely the legal system) to the same standards as the PIC, like any other flight with more than one pilot, who ios the pilot in command is a matter of agreement. No agreement (and maybe even when there is one)? The FAA will look at how the flight is conducted.

If you are looking for a bright red line on one side of which there is responsibility and on the other side of which there is none, sorry, it ain't there.

 

[apr911]

An interesting question for sure and I can certainly see the arguments for both sides...

I recently started to transition to tail wheel training and this last weekend the prop struck the runway on one of my landings with the CFI at the controls in the co-pilots seat. If I had started my training in a tailwheel, my experience and hours in the plane would not be enough for me to have been endorsed for solo and therefore unable log PIC time, however, as I do have my PPL and the tailwheel is an "additional training endorsement" and not really a "type" or "class/category" rating, I have been logging the time as PIC even though I technically would not be able to fly PIC without the CFI in the plane and at the co-pilot controls.

On the one hand, if I were full-on student, the primary responsibility would be on the CFI and even as a PPL, Im hiring the CFI to train me in tailwheel operations and thus expect the CFI to exercise a certain "duty of care" to ensure things like that dont happen.

On the other hand, I was the pilot primarily in control of the plane on the landing which makes me responsible and I expect that's ultimately how the club will determine responsibility.

Ultimately, my own sense of responsibility means Ill probably eat the downtime and insurance deductible costs associated with my club's insurance policy and move on from there. Hopefully though my CFI will help me defer the costs of completing my endorsement by working with me at a reduced rate/hr but it's still too early to know how it will all play out.

I figure if I'm sitting upfront for any reason on a pt91 flight and something happens it's somehow going to be fully to partially my fault. Thus I'm always in CFI mode when I'm in the above situation, might as well try to make a save if I'm going to get blamed ether way.

Personally, I'd disagree with blame in a situation like this being assigned to a CFI/ATP... Unless you are acting as a second-in-command (in which case partial responsibility would be on you) or were hired to act as a CFI, the duty of care owed to the safe operation of the aircraft should be curtailed to the extent of being any other passenger (which in practice means if you witness a procedure that you know will cause an issue and dont speak up you could be negligent but to be held responsible for an otherwise unpredictable event is a bit of a stretch) except in a dire emergency in which you need to assume the role of a member of the flight crew. The fact you are a CFI/ATP should be irrelevant just as the fact that a deadheading pilot is in fact a pilot would not automatically make them responsible for the operation of the aircraft they are riding on (especially if the equipment belongs to another airline or if they are not appropriately rated for the type) unless for some reason they were asked or required to assume some responsibility by a member of the flight crew or the incapacitation of the crew.

That being said, its good that you do treat it this way as Cap'n Ron pointed out a scenario where a non-pilot passenger was found contributorily responsible for an accident.