AOPA Pilot Magazine - October 2021 - 24

PROFICIENT PILOT
Legal but not safe
There is no regulation prohibiting poor
judgment
BY BARRY SCHIFF
SOME MONTHS AGO, I was seated in the pilot's lounge of a local
SoCal flight school waiting for a friend to arrive in his de Havilland
Beaver. Also there was a trio of flight instructors waiting for the
morning marine layer-June gloom, as the locals call it-to burn
off and enable them to get on with the business of instructing. I
couldn't help overhearing their conversation, which became animated
at times. It was a discussion about the concept that just
because something is legal does not necessarily mean that it is safe.
The first example mentioned was the zero-zero takeoff.
There is no minimum ceiling or visibility requirement for an
instrument pilot operating under Part 91 to make such a takeoff-and
there are pilots who claim to do this, an operation
fraught with peril. Another example was making a seaplane
landing at night-and there are those who assume this risk. And
then there are those strictly VFR pilots who fly above extensive,
low-lying cloud layers in single-engine airplanes even when
over mountainous terrain. Yes, these operations are legal; there
are no regulations prohibiting them. But are they safe? I don't
think so, but mine are subjective opinions. Some pilots obviously
disagree.
There are lots of other things we are allowed to do that are
not particularly safe. Consider the regulation allowing us to
plan a daytime VFR flight with only a 30-minute fuel reserve.
This means we are allowed to plan landing at our destinations
with only two usable gallons in each tank of a Cessna 172, for
example. For me, that's not enough. My personal goal when
planning cross-country flights is to land with an hour's worth
of fuel on board.
Other operations that are legal but not necessarily safe
include scud running, flying into challenging mountain airports
without preparation and training, and carrying passengers while
minimally current. With respect to this last operation, a pilot who
hasn't flown for more than a year, for example, would be legal
to carry passengers on a cross-country flight after making only
three solo takeoffs and landings. Not smart.
One of the instructors eventually asked, " If a pilot does something
that is absolutely legal but is nevertheless hazardous, might
not the FAA go after him for operating in a careless or reckless
manner, a violation of Part 91.13 of the regulations? "
Interesting question, one that prompted some research.
24
AOPA PILOT / October 2021
These days, the FAA generally alleges a violation of 91.13 only
in conjunction with another violation, such as buzzing someone's
house or busting Class B airspace. It goes without saying that the
FAA seems to automatically tack on a violation of " careless and
reckless " to any other accusation it makes against a pilot.
This does not mean, however, that a pilot could not be
charged with an independent violation of 91.13. There was
a time when FAA made this allegation when a pilot failed to
extend the landing gear prior to landing, for example. Because
the regulations do not require a pilot to extend the gear prior
to landing, a careless and reckless allegation was the only way
for the FAA to otherwise cite the pilot.
Today, however, the FAA apparently does not accuse a pilot
only of careless and reckless operation unless his behavior is
particularly egregious, and the agency believes that the accusation
can be proven. Assume, for example, that a private pilot
took three passengers on a night flight along the shoreline of
the Pacific Ocean abeam Malibu, California. Assume also that
he paralleled the coast while 3 miles over the water and flew so
low that he had to use landing lights to avoid a water landing.
It would be difficult to imagine anything much more deserving
of a careless and reckless allegation-even though the pilot
was not in violation of any other regulation. (There is no limit
to how low a pilot may fly over water so long as he does not fly
closer than 500 feet to persons or property.)
In a similar but factual case, the airplane inadvertently did
land in the water. The rear-seat passengers were unable to exit
the sinking aircraft and perished. This attracted the attention
not only of the FAA but also of the Los Angeles County District
Attorney, which brought forth criminal charges against the pilot.
(It is noteworthy that Part 91.13 applies only when the pilot
endangers persons or property. No one seems to care if you
endanger only yourself.)
Pilots need to acknowledge that what is legal is not necessarily
safe, and that there is no regulation prohibiting
poor judgment. We need
to abide by common sense
and maintain a low tolerance
for risk.
BarrySchiff.com
BARRY SCHIFF has been
instructing since 1956 and
was an FAA-designated pilot
examiner for 14 years.
http://www.BarrySchiff.com
AOPA Pilot Magazine - October 2021

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