In last months Post Flight I looked at how the FAA defines “Pilot In
Command”, and asked the question “Are You Teaching Your Students
How To Be A Pilot In Command” .

In this months issue of Post Flight I would like to address the situation
where there are two certified pilots in an airplane, and one of them is
a Certified Flight Instructor.

You may not realize it, but when you obtained your CFI certificate
the FAA then considered you an expert in the science and skill of
flying an airplane; regardless of the number of flying hours you have.
To this end the FAA has given ALL CFI’s  a wide range of
independent authority. Examples of this authority are the ability
of a CFI to:

teach a person to fly an airplane.
solo a pilot in any type of airplane that the CFI is rated to fly.
 certify that a pilot is safe for another two years of flying.
certify a pilot to fly complex and/or high performance airplanes.
 certify the pilot is capable of flying pressurized aircraft.
certify the pilot is competent to fly on instruments.
recommend a pilot for a private or commercial pilot check ride.
 
As a flight instructor teaching basic flight training, clearly you are
the Pilot In Command whenever you are in the airplane with your
student. And there is no doubt that it would be your certificate that
would be on the line, should your student violate an FAR while you
were in the airplane.

But how does the FAA, and NTSB decide who was Pilot In
Command; when a CFI is flying with a certified pilot and an accident
or an FAR is broken.

As you read the following article ask yourself, as a CFI, have I done
some thing similar to this too.

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COPYRIGHT 1995 AIRCRAFT OWNERS AND PILOTS ASSOCIATION

November 1995 AOPA PILOT magazine

PILOT COUNSEL: PILOT IN COMMAND?

By John S. Yodice

"Who is pilot in command of an aircraft when there is more than one
qualified pilot at the controls?" That's an often debated legal
question. We can't find the answer to this question in the Federal
Aviation Regulations.

 Flying with more than one qualified pilot on board a dual
control aircraft is a situation that occurs frequently in our everyday
flight. Most times it is fairly obvious who is PIC. But, many times it
is not, and typically no one worries about it--until there is an
accident or an incident.
 The question is even more intriguing when one of the pilots is
a flight instructor.
 The National Transportation Safety Board has repeatedly held,
as a matter of law, that "regardless 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 pilot in command."
 
Is this correct? The Federal Aviation Administration, which
should have the final word in the interpretation
of the FARs, has never publicly disagreed with the NTSB, although
the NTSB holding does not seem to square with other things that the
FAA has said.
 The question recently came up in the context of a checkout by a
flight instructor of a fully qualified pilot. After an accident, the
Board, relying on its precedents, held that the CFI was pilot in
command, even though he denied acting in that capacity.
 The FAA charged the flight instructor with being careless--in
violation of FAR 91.13--and sought to suspend his flight instructor
certificate for 30 days. The flight instructor appealed the
suspension to the NTSB.
 Here are the facts of the case. The flight instructor was
involved in a flight training "adventure camp" that was attended
primarily by Europeans. On the day in question, he had been giving
flight instruction in connection with his school. In attendance that
day was a pilot filming a promotional video for the school, who was
also planning to participate in the school's flying activities. At the
end of the day this pilot indicated that he would like to fly the
school's Piper Tomahawk back to the school's base.
 The pilot was an instrument-rated commercial pilot with some
350 hours of flight training experience. He had been trained and
certificated in England and had been issued his U.S. pilot certificate
based on his foreign license.
 Believing that he needed a checkout in the aircraft before he
could legally fly it solo during an upcoming cross-country trip, the
pilot asked the flight instructor to accompany him. Under the
regulations, he didn't need to be checked out in the Tomahawk
because he was already current and qualified in a Cessna 150, an
aircraft of the same category and class--airplane, single-engine
land. He had recently been checked out by this same flight instructor
in the 150. The flight instructor tried to convince the pilot that he
legally did not need a checkout, but the pilot insisted, saying that it
was a requirement in England. So, the flight instructor agreed to go
with the pilot but maintained that he would not be acting as a flight
instructor.
 As the Tomahawk was on final approach to a 2,420-foot grass
runway, the flight instructor indicated that the pitch and power
configuration of the airplane was dangerously low. The pilot added
power. The airplane touched down somewhat faster and slightly
farther down the runway than normal. Both agreed that the pilot
should do a touch and go, and there was plenty of remaining runway
to accomplish one. The pilot added full power, and then, inexplicably
and without warning, reduced power and jammed on the brakes. At
that point, there was only 300 feet of runway remaining. The
airplane broke through a fence and continued some 400 feet beyond
the end of the runway, finally stopping in a corn field.
 The case was first heard by an administrative law judge of the
NTSB. On these facts, the judge found that the flight instructor was
careless and he upheld the 30-day suspension of the flight
instructor's CFI certificate. On appeal to the full Board, the judge's
decision was reversed. The full Board agreed with the judge that the
flight instructor was pilot in command of the flight but disagreed
that the flight instructor had been careless. The Board found that the
flight instructor could not reasonably be expected to anticipate that
the pilot would abort the takeoff when he did. The Board said, "We
will not impose strict liability on him for all of his student's
mistakes." The Board repeated its past holdings that "the flight
instructor is always deemed to be pilot in command."
 These holdings seem at odds with the FAA's repeated
statements that a flight instructor who doesn't hold a medical
certificate may give flight instruction to a qualified and current
pilot, if the flight instructor does not act as pilot in command.
These FAA interpretations clearly show that a flight instructor may
give flight instruction and not be pilot in command.
 This FAA interpretation has been reaffirmed as recently as the
current rule making to revise FAR Part 61, in which the FAA said: "A
person is not required to meet the requirement of [holding a medical
certificate] if that person is exercising the privileges of a flight
instructor certificate, provided the person is not serving as a
required crew member or as pilot in command." Obviously, according
to the FAA, the flight instructor is not "always" the pilot in
command.
 It seems to me that the proper interpretation is the one that
the FAA gave some years ago when it was asked for the legal
meaning of the term pilot in command. The FAA said: "Who is pilot in
command is a question of fact, not a question of law, which must be
determined in the light of all the circumstances of the particular
situation, not just the ratings of the pilots involved."
 

In summary, as a Certified Flight Instructor you ARE the Pilot In Command

whenever you are flying in an airplane; regardless of who is manipulating the
flight controls, there ratings ,and/or experience.

In next months article, on Pilot In Command and the CFI, I will look at the legal
liabilities, that we CFI incur, every time we provide flight training or go flying in
an airplane.