by David Jon Fischer
Since its inception, FAR §91.3 (see box) has represented one of the most important principles governing aeronautical regulation. This principle shades virtually every aspect of balloon flight, whether prior to, during, or after a flight. It influences the relationship of the pilot with the FAA, the National Transportation Safety Board, and the pilot’s relationship with his or her passengers, sponsors, and bystanders.
Paragraph (a) succinctly summarizes this principle: "The pilot in command _ is directly responsible for, and is the final authority as to, the operation of that aircraft." There are six ideas in this statement that must be considered in understanding the scope of §91.3.
Pilot in Command
§91.3 applies to the pilot in command, and not to others. The circumstances that show when a pilot is acting as a pilot in command is governed by the respective requirements for the private rating, the commercial rating, and the regulations governing student pilot flight training in FAR Part 61. Thus, it is the pilot in command who bears the legal responsibility for the operation of the aircraft.
Thus, a person who has a private or commercial rating and is on board a balloon as a passenger or crew member but not as a pilot in command, should not be held to account for the operation of the aircraft.
"directly responsible for"
§91.3 holds the pilot in command specifically responsible for the operations of the aircraft. "Responsibility" is not defined in FAR Part 61 or 91, thus, one must look to the dictionary definition of "responsible". The dictionary shows that "responsible" is used in the context that the person is being held accountable, or that the person is to be culpable or liable for his actions. Thus, the use of the phrase "directly responsible" can be taken to emphasize the personal responsibility that the pilot in command has for all operations of the aircraft.
"final authority"
§91.3 specifically grants to the pilot in command a final authority as to the operation of the aircraft. This phrase gives to the pilot in command the legally enforceable power to make the ultimate decisions regarding the operation of the aircraft, including the decision to begin, terminate or cancel aircraft operations, to accept or refuse passengers based upon the requirements of the FARs, particularly including safety. This authority not only applies to compliance with the FARs, it also applies in other contexts, such as contracts, where the pilot in command’s authority over the operations of the aircraft may come into play. (Thus, a contract that seeks to affect the pilot’s decision-making authority is restricted by the application of §91.3. See Legal Log entries for August, September and October 1992 for an extensive discussion of this point as to the weather, safety and financial considerations of contracts concerning ballooning- related activities.)
"operation"
According to FAR §1.1, "operate" with respect to aircraft, means the "use, cause to use or authorize to use aircraft, for the purpose : of air navigation including the piloting of an aircraft, with or without the right of legal control (as owner, lessee, or otherwise)," Thus, if a person has no legal right to possession or control of an aircraft as property, but has taken possession or control so that either that person or another has physically put the aircraft into flight, that person is "operating" the aircraft. It seems therefore that it is conceivable that a pilot in command might not have to always have physical control over the aircraft, and still be subject to the provisions of §91.3.
In-flight emergency exception
Paragraphs (b) and (c), however, create a unique exception as to the responsibility of the pilot in command for the operation of the aircraft. If an in-flight emergency arises that requires immediate action, the pilot in command may deviate from any rule of FAR Part 91 the extent required to meet that emergency. However, the pilot in command is given limited dispensation under this provision. The pilot in command can only deviate from the requirements of Part 91 only to the extent required to meet that emergency and no further. Thus, if an emergency requires that the pilot deviate from the requirements of §91.119 on minimum safe altitudes, the pilot’s right to deviate is limited to only that necessary to meet the emergency. (See Legal Log, March 1193 for a discussion of the requirements of 91.119.)
Should the pilot in command exceed that scope of permitted deviation, clearly he or she will be subject not only to enforcement action by the FAA, by other legal proceedings as well. On the other hand, if the pilot in command can show that he or she deviated from the requirements of a provision of Part 91.3 only to the extent necessary to meet an in-flight emergency, then paragraph (b) of §91.3 not only serves as a complete defense to an FAA enforcement action (as the deviation is itself authorized by the FARs), it will buttress the pilot in command’s defenses to other claims as well. Finally, §91.3 (c) further obligates each pilot in command who deviates from a rule in Part 91 to send a written report of that deviation to the FAA when requested.
§91.3 Responsibility and authority of the pilot in command. (a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft. (b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency. (c) Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the Administrator, send a written report of that deviation to the Administrator.