90 Day Rule - revisited

[robin]

It has been a subject that has raised its head from time to time but here we have a very interesting AAIB report. I wonder what happened next. Did the insurers pay out, for example?


Air Accidents Investigation: Piper PA-22-150 Caribbean, G-ARHN

[tmmorris]

I'd like to see that tested in court. That appears to me to be a statement of opinion by the CAA, but the wording of the ANO ('sole manipulator') is still ambiguous. Even if the POH specifies the PIC must sit in the LHS, there seems no reason why the passenger can't be the sole manipulator.

[BEagle]

In a single pilot aircraft, the handling pilot is the PIC unless he/she is being supervised or instructed by a flying instructor.

In order for a pilot to regain 90-day currency (sic) to be entitled to carry passengers, he/she must carry out at least three take-offs and three landings as the sole manipulator of the controls either flying solo or under the supervision of a flying instructor.

Unequivocal fact, not a 'statement of opinion'.

While for SEP Class aeroplanes only, a qualified pilot may familiarise another qualified pilot with a specific aircraft variant within the Class, this does NOT include regaining recency.

A pity it took an accident to remind people of the requirements for regaining 90-day recency.

[24Carrot]

Not to disagree, as common sense does lead one to the CAA interpretation, but the report contains the following:

The CAA provided the following clarification of these rules:

If the AAIB needs the CAA to clarify the wording, then the wording is poor.

[Whopity]

Even if the POH specifies the PIC must sit in the LHS, there seems no reason why the passenger can't be the sole manipulator.

By virtue of being a passenger one is no longer a member of the crew Art 255

'Passenger' means a person other than a member of the crew;

In order to become the sole manipulator for the purposes of the exercise, you must be either PIC or Dual and unless the other pilot is an instructor, they automatically become a passenger whilst you manipulate the controls for the purpose of recency, and if you are outside 90 days then you are illegal! Plain simple and unambiguous.

[dublinpilot]

Some time after the flight, Pilot 2
stated that he had become aware that the group policy
was “an incorrect interpretation of the ANO” and that,
with the exception of the landing he demonstrated, he
was neither handling pilot nor PIC during the flight.

So the pilot 2 know that pilot 1 could not carry him as a passenger, so the only what that they could be onboard that flight was if they were in command of the flight.

Pilot 2 knew that club rules required them to operate as the commander of the aircraft.

The only way that they were on board was a pilot in command.

Yet *after* the accident they tried to worm their way out of any responsibility by claiming that they were not the pilot in command (except possibly when demonstrating a landing).

Not sure that I'd every want to fly with them. Man up and take your responsibility.

Originally Posted by AAIB Quoting ANO

‘Pilot in command’ means a person who for
the time being is in charge of the piloting of an
aircraft without being under the direction of any
other pilot in the aircraft’

Note it doesn't mention who's handling the controls.

Originally Posted by AAIB Quoting ANO

‘The holder may not fly as pilot in command of
such an aeroplane carrying passengers unless
within the preceding 90 days the holder has made
at least three take-offs and three landings as the
sole manipulator of the controls of an aeroplane
of the same type or class;….’

No mention of an instructor there.

Originally Posted by AAIB Quoting CAA

‘The aircraft was certificated for single pilot
operation and therefore the only person who
can be a member of the flight crew in addition
to the handling pilot is a flying instructor who is
instructing or supervising the handling pilot. A
person who is not a flying instructor and not the
handling pilot would be a passenger.

The CAA have not quoted any rule here to confirm their 'opinion'. What makes that person handling the aircraft the pilot in command? If that were the case then a terrorist taking over the controls or an aircraft would become the pilot in command.

The CAA have made a statement but given no reason why a second person on board who isn't an instructor can not be the pilot in command. It's very unlike them not to quote a rule when making a statement which makes me thing that this comment was not given by someone senior.

Originally Posted by AAIB Quoting CAA

A pilot wishing to regain his/her 90-day currency
to be entitled to carry passengers must complete at
least three take-offs and three landings as the sole
manipulator of the controls. These manoeuvres
must be flown either solo or under the supervision
of a flying instructor as a passenger cannot be
carried until the currency is regained.

Again saying so doesn't make it true. They have given no legal reference for their statement that an instructor is required. Clearly the out of currency pilot can not be the pilot in command, but they have given no reason why they can't be a passenger.

The rationale behind this rule is that a flying
instructor has been trained to fly an aircraft from
either seat and to know when to intervene if the
pilot under instruction or supervision appears to
be struggling to handle the aircraft safely. An
instructor is also aware that he or she remains
pilot in command during an instructional flight.’

This is firmly in the area of opinion. This rule was originally written by ICAO. How does this individual in the CAA know what ICAO's rationale was?

If their opinion that the rationale was so that an instructor could intervene if the pilot was struggling was correct then why is the pilot allowed to fly without an instructor? I would suggest (and it's only my opinion as much as that was the CAA person's opinion) that the rationale behind the rule is that an unwitting passenger is not subject to the dangers of flying with a pilot who hasn't flown recently. But I don't know what was in ICAO's mind any more than this CAA person does.

Who among us has ever seen the CAA write three paragraphs of legal interpretation without quoting one legal reference?

In order to become the sole manipulator for the purposes of the exercise, you must be either PIC or Dual and unless the other pilot is an instructor, they automatically become a passenger whilst you manipulate the controls for the purpose of recency, and if you are outside 90 days then you are illegal! Plain simple and unambiguous.

Why do they automatically become a passenger? Why don't they retain their pilot in command status? What makes someone handling the controls of the aircraft a pilot in command?

[gasax]

This 'difficulty' has been in the rules since the 90 day requirement was introduced. There are any number of postings on here and Flyer spelling out the CAA interpretation which was given to the AAIB.

But I'm left in the same situation as dublinpilot. If it is legal to let a passenger fly the aircraft, then where is the regulation which says someone flying the aircraft is not the sole manipulator of the controls - if the PIC does not manipulate the controls?

'Cos from the comonsense point of view (I know the last thing one would expect is common sense in aviation regulation but,) if I do not manipulate the controls - then someone else must be doing it! If they are the sole manipulator of the controls, then that is what they are.

I too feel that the lack of a proper regulation quote suggests this is what they want it to say rather than what it actually says....

And again, long before the 90 day requirements most groups had these sort of sensible arrangements to try and ensure currency.

[robin]

So, before we drown in our personal interpretation of this rule - my point is whether or not, in this case, the flight was deemed illegal.

I would guess the CAA wouldn't prosecute given the nature of the injuries and loss, but did the insurers pay out?

If they didn't then it would be clear that to risk doing what these group members did is pure folly, regardless of our interpretation of the rules.

[gasax]

If the CAA had given references then we could plainly see the flight was illegal. They did not, they gave an opinion.

On that basis the insurance either has to engage in legal argument or pay. given the costs of 'legal argument' paying is virtually always cheaper.

If it was clearly illegal, then why would the CAA not prosecute?

[Mariner9]

I always thought the thinking behind the 90 day rule a bit odd. If the CAA deem a pilot not safe enough to carry pax unless 3 t/o & landings had been done, why do they not afford the same legislative protection to the pilot by mandating (for example) an instructional flight?

A non-current pilot could simply regain pax-carrying currency by doing 3 solo circuits in the current system. They could be the worst circuits ever flown but it would still be apparently acceptable. The CAA are therefore relying on the pilot's own assessment of his/her ability to safely fly the aircraft following the 3 circuits.

Given that the pilots own assessment is required for each and every flight in any event, why have any 90-day legislation at all?

[wb9999]

dublinpilot, one possibility (purely guesswork here) is because the 2 pilots stated to the AAIB who was P1 before they realised that the person in the left hand seat was not entitled to be P1. If they had already told the AAIB they cannot go back on that when advised of their error.

[mad_jock]

The rationale behind this rule is that a flying
instructor has been trained to fly an aircraft from
either seat and to know when to intervene if the
pilot under instruction or supervision appears to
be struggling to handle the aircraft safely. An
instructor is also aware that he or she remains
pilot in command during an instructional flight

Yes and suddenly two days after there FI rating is up they develop into a squishy ball with no ability to suddenly fly in the RHS.

[Level Attitude]

I notice the "Check Pilot" only had one hour in the previous 90 Days.
Hopefully that included 3 T/Os and Lndgs else neither pilot was legal.
Also - not that current themselves given the responsibility of
"checking out" someone else.

I have never understood how/or why some people believed that
"unofficial" / unloggable flying" as a passenger could then be used for
the "official" / legal purpose of regaining currency to carry passengers.

Perhaps the CAA should suggest to EASA that the wording is changed
to "Solo" or "Dual (with a qualified Instructor)"

[Heston]

Perhaps the CAA should suggest to EASA that the wording is changed
to "Solo" or "Dual (with a qualified Instructor)"

Good idea, although it would still need the "as sole manipulator of the controls" stipulation in order to exclude take-offs and landings flown by the instructor!

[robin]

Don't get EASA involved!!!!

[englishal]

Soooo...if you are being "checked out" on a brand new type with a 500HP radial engine up front (that is still only a SEP) and you are legal in all respects but never flown anything other than a C150, then it is ok for the RHS "PIC" to wrestle controls from the "sole manipulator" in the event of a botched approach and landing, but it is not ok for someone who is competent on their C150 to sit in with an uncurrent pilot who could also be equally competent on the C150, albeit a little rusty?

Seems to me that it is rather sensible to ask your mate to come up with you and spot you don't make any silly mistakes.....

Anyway I have been on many flights where the only "sole manipulator of the controls" is a black box for a lot of the flight and the PIC might be sat in the RHS........

[steve1234]

Perhaps the AAIB need to do the manning up? A pretty pointless report. I heard the CAA wrote to that flying group saying the check pilot wasn't even legally entitled to fly the plane which if true raises all sorts of questions.............but that's not mentioned in the AAIB report.

[foxmoth]

Soooo...if you are being "checked out" on a brand new type with a 500HP radial engine up front (that is still only a SEP) and you are legal in all respects but never flown anything other than a C150, then it is ok for the RHS "PIC" to wrestle controls from the "sole manipulator" in the event of a botched approach and landing

Actually, no, in this case, unless the other pilot is an instructor then the "check pilot" is technically only there as an advisor - though as PIC you can accept him taking control to save the aircraft - but that is down to you as PIC, in the other example you cannot be PIC so cannot be flying in the first place.

[Whopity]

If it is legal to let a passenger fly the aircraft, then where is the regulation which says someone flying the aircraft is not the sole manipulator of the controls - if the PIC does not manipulate the controls?

There is a difference between not being illegal, and being legal. It is not illegal to let a passenger fly the aeroplane, but the experience gained cannot be counted for recency purposes if the claimant is not a crew member. 90 day recency means they have acted as a pilot for the purpose of 3 landings and take offs. If they are not qualified to do this with a person on board who meets the legal definition of a passenger, then they have two choices, gain the experience solo, or with a person qualified in accordance with Art 80.

This regulation came straight from the JAA not the CAA, if you think it is badly worded, look at Part FCL, it is riddled with similar English written by people whose mother tongue is not English. The CAA can only give an opinion, it takes a court to give a ruling.

[flybymike]

As remarked earlier in the thread, why bother having the rule at all.

We all managed just as safely for decades before the rule was introduced by JAR around the year 2000. The CAA's own safety review showed no improvement in safety statistics following introduction of the rule (or for that matter introduction of BFRs, annual MEP tests etc) and if "uncurrent" I would rather take another group member pilot with me who was familiar with the aircraft than take some instructor who may never have even sat in that particular type before.