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The Pilot in Command and the Fars: the Buck Stops Here (Almost Always)1 Raymond C

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The Pilot in Command and the Fars: the Buck Stops Here (Almost Always)1 Raymond C A Publication of The Florida Bar Aviation Law Committee To Promote Education in the Florida Aviation Community Volume I, Issue 3 Florida Aviation Law Journal August 2008 The Pilot in Command and the FARs: The Buck Stops Here (Almost Always)1 Raymond C. Speciale2 and Brett D. Venhuizen3 The Federal Aviation Regulations (FARs) command for the flight. For Part 135 flights, make it clear—the pilot in command of an the 135 certificate holder must designate IN THIS ISSUE: aircraft is directly responsible for, and acts a pilot in command and “a second in com- as the final authority as to, the operation of mand”8 for flights that require two pilots.9 Read Back ................................2 that aircraft.4 However, the regulations are Once designated, the pilot in command of a FAA Proposal on often silent on several significant questions Part 135 flight remains the pilot in command Registration of Aircraft ....4 that frequently arise in the context of pilot in at all times during that flight.10 For Part 121 command responsibility. First, who is the flights, the minimum pilot crew is two pilots Airport “Through the Fence” operations and pilot in command when more than one pilot and the Part 121 certificate holder must Residential Airparks occupies the cockpit? Also, is the pilot in designate one pilot as pilot in command and at Publicly Funded command responsible when a qualified and the other pilot as second in command.11 Airports ................................5 capable second in command commits an er- For operations under Part 9112 of the ror? Is the pilot in command responsible for FARs, the question of who is pilot in com- knowing whether his aircraft is being oper- mand can be simple in some cases and ated with any latent defects that might impact more complex in others. In circumstances the aircraft’s airworthiness? Can more than where a pilot flies without another pilot, one qualified pilot in the cockpit be held re- either solo or with passengers, that pilot is sponsible for FAR violations? The purpose obviously acting as the pilot in command.13 of this article is to explore these questions However, the situation can become a bit and provide guidance for those faced with murky under certain circumstances. The the question of pilot in command responsibil- cases where controversy over who has pi- ity under the FARs, and, specifically, in the lot in command responsibility has typically Editorial Board: context of Federal Aviation Administration arisen in the following Part 91 situations: (FAA) enforcement proceedings. S. V. (Steve) Dedmon, 1. Flights where a certified flight instructor Editor-in-Chief I. Who is the Pilot in Command? (CFI) is in the cockpit;14 In most cases it is relatively easy to de- 2. Two pilots operating an aircraft with dual- termine the person responsible as pilot in controls when both pilots are qualified Committee Officers: command of an aircraft. The FARs gener- to operate the aircraft as pilot in com- Harry Lee Coe IV ally define the term “pilot in command” as mand;15 Chair the person who (1) has final authority and 3. Flights simulating instrument meteoro- S. V. (Steve) Dedmon, responsibility for the operation and safety of the flight; (2) has been designated as the logical conditions16 requiring a safety Vice Chair 17 pilot in command before or during the flight; pilot; and, Brian David Burgoon and, (3) holds the appropriate category, 4. Checkrides with FAA examiners.18 Board Liaison class, and type rating, if appropriate, for the conduct of the flight.5 A. CFI in the Cockpit For commercial flight operations requiring The certified flight instructor (CFI) carries Part 1216 or Part 1357 certification, the regu- a heavy burden when it comes to the ques- lations require the designation of a pilot in See “Pilot in Command” on page 10 “Read Back” By: Harry Lee Coe IV S.V. (Steve) Dedmon legacy while helping a student realize trappings of plush carpets, brass fixtures, Our June meeting was held at the their aviation aspirations. Also, remem- and fresh mahogany office furniture. Boca Club and Resort in Boca Raton in ber VECTORS always has a page or two Mr. Goldstein (hold holds the Title of conjunction with the bar’s annual meet- or three for memorializing your legal and Secretary, Vice-President, and General ing. As in years past it is that time when aviation related knowledge or experience Counsel of Signature) then spoke of the bar welcomes its new leadership and who better to share it with than your the “Do’s & Don’ts” of contract counsel, and acknowledges the efforts of those fellow committee members and the world and their typical interplay with the refer- who gave so earnestly the past year. for that matter as it is available on the ring entity and in-house staff (Signature Our committee was no different as we Florida Bar website. Otherwise, see you “farms out” a lot of their actual litigation gave a heart felt “Thanks” to Elisabeth in Tampa on September 12, 2008. cases to referral/contract counsel for Kozlow for her dedication and leader- The meeting’s first presentation was a handling). Mr. Goldstein discussed ship. Unless you have “been there-done joint-presentation from Wendy McDowell, acceptable versus objectionable billing that” you cannot get a sense of what it Esq. & Joseph I. Goldstein, Esq., who are practices of referral counsel. For ex- takes to fulfill the responsibilities in posi- both in-house counsel for: “BBA Shared ample some of the “pet peeves” which tions of authority in a committee such as Services, Inc.” (which is in-house counsel Mr. Goldstein commonly encounters ours. For those of you who have, and for: Signature FBOs), entitled: “Taking from contract counsel is failing to keep those of you who will take leadership Your Practice In-House: A Candid Look at him informed of the status and posture of positions, I am sure you can or will, ap- In-House Lawyering.” Wendy discussed the on-going case, and in some instances preciate Elisabeth’s efforts. In that vein, the differences, both professionally and the frustration associated with expending the committee welcomed Harry Coe as personally between being in-house coun- vast resources in defense of a particular Chair and Steve Dedmon as Vice Chair. sel, as she is know and has been for the case, or a given legal position, only to be Unfortunately, I was unable to attend past three (3) years, and being with a informed at a later time, deep into the on- due to a medical emergency that side- private firm , which she did for several going litigation, that the aforementioned lined me for a couple days. I sat out to years, prior to joining Signature. Wendy position was not sustainable, or justified. fly myself down on Friday, but the drive made the point that there exists a mythi- Mr. Goldstein, also indicated that all major to the plane was too uncomfortable, so cal stereotype that in-house counsel are decisions, including the decision to settle the thought of sitting in a confined area “Cush Jobs,” as there is no productivity cases, should be directed and approved without the possibility to “pull over” did measurements, time pressures, or long by him, as General Counsel, prior to be- not bode well for the trip. Besides, had hours. To the contrary, she still works ing entered into by the contract counsel, something happened I would have prob- long days and hours and also takes as he is “The Client,” who expects to ably violated some FAR! However, I am work home with her, and even has to control the litigation and ultimately will happy to report all is well. Before I leave work some weekends. Of course being be looked to pay the settlement and the the leadership issue, should you have in-house, she is a “regular” employee contract attorney’s fees. Finally as to any ideas or suggestions for upcoming who receives a salary and benefits. She billing practices by contract counsel, Mr. meeting topics, speakers, or anything also focuses on an area that she enjoys: Goldstein indicated that bills for “review of a general nature, do not hesitate to “Aviation”- as it is not something a lawyer file” and “joint attorney conferences,” all speak with Harry or I. Consider your help in private practice can typically do exclu- from lawyers of the same firm, looked solicited and encouraged. Also, a special sively. Wendy also related that while she bad, and are typically not reimbursed. He “Thank You” to Harry for taking the time is primarily an “Aviation” attorney, she, as also indicated that pre-approval for long to take notes and giving us an overview in-house counsel also has to deal with or arduous legal research projects, and of the presenters and their topics. employment law issues, hiring & firing, for large court cost expenditures should As a general reminder, as there are a contract negotiations, and other related first be presented and approved by the couple items we need to keep in mind. legal issues. Finally, she intimated that General Counsel, prior to being under- First, as a committee you have probably while generally satisfied with her choice, taken, or incurred. Mr. Goldstein said the seen e-mails regarding contributing to her lifestyle is perhaps only a notch better badge of distinction for contract counsel the Eilon Krugman-Kadi Scholarship fund than it would be, if she was a partner with is if, after concluding a particular matter set up through Embry-Riddle Aeronauti- a private firm, and noted the trappings to the satisfaction of the client (i.e.- him- cal University.
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