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Pilot-Induced Emergency Deviations Have Consequences

By W. Hunter Old

Most pilots are aware of Section 91.3 of the Federal Aviation Regulations (Title 14 in the Code of Federal Regulations), which allows a pilot-in-command to deviate from any Part 91 flight regulation when “an in-flight emergency requiring immediate action” occurs. On commercial flights, section 135.19 gives similar permission to deviate from rules relating to aircraft and equipment and weather minimums, as required to meet the emergency.

However, the authority to deviate does not mean deviation is not without consequences, especially not when the emergency situation was caused by the pilot’s own actions. In a recent opinion, the National Transportation Safety Board upheld the suspension of a pilot’s commercial helicopter license for 45 days because, in the Board’s view, he caused his own emergency situation. The Board’s decision reaffirms a long-standing principle that a deviation is not justified if it results from an emergency situation caused, even remotely, by something the pilot did or did not do.

In this case, the pilot of a Bell 106L3 Longranger in Pennsylvania ran into some unexpected inclement weather. While trying to orient himself, he entered Class D airspace without establishing and maintaining radio communications. Section 91.129(c)(1) of the FARs requires that, before entering Class D airspace, each person operating an aircraft must establish two-way communication with the ATC facility providing air traffic services for that airspace. Once established, he must maintain contact while operating within the airspace. Here, even though a single regulation was broken, the FAA charged the Longranger pilot with separate infractions for failing (1) to establish two-way communications and (2) to maintain two-way radio communications. The FAA views Section 91.129(c) as creating two separate responsibilities.

As soon as he realized where he was, the pilot took immediate and appropriate action, and exited the airspace without further incident. During the certificate action that followed, the pilot defended himself by claiming he acted reasonably under the circumstances. Once he realized where he was, he immediately called the airfield tower, established radio contact and maintained it until he was able to leave the controlled airspace without incident. Even though the pilot never declared an emergency, the Board viewed his defense to be based on section 91.3: the pilot encountered an emergency situation and did what was necessary to save himself and his passengers.

The NTSB held that an emergency defense was not applicable here. In asserting an emergency defense, the pilot in command must show the emergency situation caused the departure from the regulatory requirements. Here, the NTSB held the PIC’s own actions caused the “emergency” he experienced because he did not take steps to reduce the risk of an airspace incursion. The weather report showed marginal visibility, yet the FAA established the pilot did not have a proper contingency plan in place for inclement weather. The fact that he encountered such conditions unexpectedly showed a lack of preparedness and awareness, the NTSB held.

Other situations where the NTSB has taken a similar hard line include airspace incursions resulting from unorthodox queries from ATC, loss of radio communication in the cockpit, and flight into a sudden snow storm. In each case, the pilot’s entry into controlled airspace while dealing with the “emergency” resulted in punishment for the incursion. While these situations all appear to have occurred when commercial pilots were flying privately, there is no reason to think regulators would treat a defense under section 135.19 any differently. Indeed, the reporting requirements for deviations under Part 135 are mandatory, while reports for deviations under Part 91 are not required unless requested by the FAA Administrator.

Of course, you should take every precaution to protect your passengers and your aircraft in any situation you view as an emergency. However, if something you did or did not do can be fairly linked to the emergency, be aware the FAA likely will not view the infraction as justified. Your best defense is adequate preparation before you leave the ground.

Hunter Old is a partner in the law firm of Kaufman & Canoles, P.C. in Williamsburg, Virginia. He holds a commercial, rotary-wing license and represents aviation-based businesses as well as individual pilots and mechanics.

This article originally appeared in the March 2009 edition of Rotorcraft Professional and was reprinted with permission.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.