AOPA Pilot Magazine - October 2017 - 24

PILOT COUNSEL

In case of emergency

BY JOHN S. YODICE

A pilot's emergency authority
THE HANDLING of in-flight emergencies is stressed in
initial and recurrent pilot training. Hand in hand with
this training should go a refresher on the pilot's legal
authority under the regulations to handle actual emergency situations. Under the regulatory scheme, safety is
the primary concern. The pilot's authority is virtually
absolute. That's to ensure that a pilot will feel free to do
whatever is necessary to handle the emergency without
having to worry about the FAA enforcing regulations
that may have been necessarily violated.
This authority will be found as part of a number of the
operating and flight rules of the federal aviation regulations. In its most comprehensive form it is found in FAR
91.3, "Responsibility and authority of the pilot in command." Paragraph (a) of the regulation provides that:
"The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation

A pilot should not hesitate to exercise his or her
authority to violate any flight rules necessary
to deal with an in-flight emergency requiring
immediate action.

JOHN S. YODICE

is a longtime
aviation attorney,
flight instructor,
and Cessna 310
owner.

24 | AOPA PILOT October 2017

of that aircraft." This straightforward provision leaves
no doubt that, according to the FAA, the pilot has the
ultimate responsibility for the safety of the flight. In the
words of the provision, he or she is the final authority-
literally-and not subject to overruling by anyone. The
regulation gives the pilot the authority necessary to meet
that responsibility. In equally plain and unequivocal language, paragraph (b) of the regulation gives the pilot the
power to disregard any of the flight rules as long as the
deviation is necessary to handle an immediate in-flight
emergency: "In an in-flight emergency requiring immediate action, the pilot in command may deviate from any
rule of this part [Part 91, the general operating and flight
rules] to the extent required to meet that emergency."
In most cases the exercise of this exceptional
power does not lead to further FAA action. The circumstances ordinarily satisfy the FAA. However,
the agency does have the right to ask the pilot what
happened. Subsection (c) provides: "Each pilot in
command who deviates from a rule under paragraph
(b) of this section shall, upon the request of the [FAA]
administrator, send a written report of that deviation
to the administrator." Notice that the requirement for

an explanation is not automatic. It applies only if the
FAA asks for one. The FAA does not usually ask unless
the circumstances warrant.
This same emergency authority is found in other
rules. For example, FAR 91.123-dealing with air traffic
control clearances and instructions-grants authority
to deviate from a clearance or instruction in an emergency. The rules governing airline and commercial
operations have similar provisions.
There is a limited exception. The FAA's policy position is that these regulations do not excuse a deviation
if the in-flight emergency was of the pilot's own making. In such a case the FAA could bring an enforcement
action against the pilot that could lead to a suspension or revocation of the pilot's FAA certificates, or
a request for reexamination of the pilot's qualifications. There are very few cases to illustrate how the
FAA applies this exception. The classic illustration is
one in which the VFR pilot gets caught in instrument
weather. The question then becomes, did the pilot do
a proper job of checking and monitoring the weather
before and during the flight? Did he or she make a
timely decision to get out of the bad weather? If not,
the emergency could be considered to be one created
by the pilot, the FAA would say.
However, it should be emphasized that this exception should never be considered while a pilot is
handling an emergency. History has shown that pilots
will handle emergencies in such a way as to minimize
the risk to others, often at increased risk to themselves.
To summarize, in an in-flight emergency requiring
immediate action, a pilot should not hesitate to exercise
his or her authority to violate any flight rules necessary
to deal with the emergency. The FAA has recognized
the safety importance of this authority. Hopefully, the
emergency will be resolved without any injury or damage to anyone or anything. The FAA does not usually
ask for an explanation, but it has the right to do so. The
FAA is less tolerant of a situation that the pilot creates
him- or herself. Nevertheless, a pilot should do whatever is necessary to deal with an in-flight emergency.
In the rare situation that an FAA inspector may
question the pilot's role in the creation of the emergency, that can be dealt with after the fact. As I have
explained many times in this column, pilots have
important procedural rights in FAA enforcement cases.
Worry about that later.
AOPA

Table of Contents for the Digital Edition of AOPA Pilot Magazine - October 2017