90 Day Rule - revisited
 

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

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.

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.

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

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

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

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.

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

No mention of an instructor there.


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.

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.

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?:hmm:

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?

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.

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.

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?

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?

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.

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.

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)"

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!

Don't get EASA involved!!!!

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........

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.

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.

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.

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.

It is high time that the 90 day rule was rewitten in unambiguous terms. This question has been subject to inumerable threads and if reasonably knowledgable, intelligent pilots can't reach a concensus, then the text is at fault and needs to be changed. The CAA 'clarification' of the rule is one interpretation, whilst other interpretations could equally be drawn. Until the rule is rewritten in such a way that interpretation is not necessary, or a legal precedent is set then this question will run and run.

For example, if the CAA demand that a pilot flies his 3 takeoffs and landings either solo as PIC or under dual instruction then that is exactly what it should say. The phrase 'sole manipulator of the controls' as quoted by the CAA is, as far as I can tell, not rigorously defined in the ANO or FCL and is therefore defined by a common sense understanding of the English language. That would be 'the person who handles the controls' with no qualifiers regarding crew/passenger/licence/currency status.

The rules provided in the report (as opposed to the opinion) would not preclude the PIC allowing the passenger to solely manipulate the controls to carry out the takeoffs and landings. Handling pilot is not synonymous with PIC. Equally, being 'in charge of the piloting of an aircraft' does not mean that you are physically handling it yourself.

I am not surprised if the CAA have chosen not to test that interpretation in court and set a precedent, as frankly I do not think it would stand up.

steve1234, the "check pilot" was not a pilot on this flight - only a passenger. So the status of whether he was legal to fly the aircraft or not is not an issue for the AAIB to look into. It is for the CAA to enforce the regulations - not the AAIB.

Or high time that it was dropped altogether. Let pilots self-police their currency. They already have to self-police weather suitability, aircraft serviceability, route suitability etc etc.

Hang on - I'm getting really confused now.

So for the purposes of the flight, the group rules state that the pilot who was current was the PIC. He let the passenger fly LH seat and happily prang the aircraft, even though the LH seat pilot was out of currency.

Straightforward enough. I'm sure most of us have let our friends and fellow pilots drive our aircraft, and some of the more experienced ones even land it. All well and good, but we remain PIC and the hours are ours.

But then to say that the passenger is able to book the time or even to regain currency is a bit far-fetched. It may be an interpretation of an ambiguous CAA rule, but some common sense needs to be applied.

In this case the pilot in the LH seat was an 88 hr pilot with 8 on type and 0 hours in the past 90 days (hardly experienced), and the check pilot also out of group currency, though well experienced on the type.

Does seem to be a bit of an attempt to flout, not only the spirit of the CAA guidelines, but also group rules.

And to those who say we should self-police and drop the guidelines, we have here 2 seriously injured pilots and a broken aircraft possibly because they felt they were above the rules laid down.

How would following the rule have helped the accident pilot? He could have done the circuit solo and stuffed it in just as he did, but entirely in accordance with the CAA rules.

In my group, being low-time on type, he'd have been flying with an instructor under group rules

An entirely sensible group rule Robin, and an excellent example of self policing being better than legislation IMHO.

I am sure that this group, and others in a similar position, will need to clarify the group rules to read something like:

If you are not current under the CAA 90 day rule, you must first regain your currency under the supervision of a qualified instructor (more business for Irv at EGHP?). Once current, you must then take a flight as PIC with a group check pilot to gain currency on our aircraft.

Too simple?

I am lucky enough in my most recent group to have the availability of a group member who is also an instructor.

"you must first regain your currency under the supervision of a qualified instructor"


Why? Do the flight solo.

But as I understand this group`s rules, if you are outside their check period, you cannot fly the aircraft solo or otherwise until you have been re-checked. So it has to be under instruction.

I can't accept the CAA "clarification" as correect and I have concerns over the conduct of the investigation.

The evidence points to Pilot 2 being PIC. Pilot 1 believes he was, and had good reason for that belief. The group rule backs up his position.

The fact that Pilot 2 subsequently changed his tune suggests that the investigation was not open-minded, fair and objective. It is difficult to escape the conclusion that Pilot 2's retraction came about because of suggestions put to him during the investigation, i.e. the witness was led.

Leaving aside for the moment that argument and assuming we have a situation where PIC is qualified and accepts that he is carrying out the role of PIC.

For the passenger to regain his ability to carry passengers the rule clearly and unambiguously states that Nothing in there requires him to be a member of the flight crew and the term "sole manipulator of the controls" is not defined so it has the meaning that a resonable person would ascribe to it. If I let my passneger handle the controls then he or she is "sole manipulator" until I or someone else manipulate a control, e.g. by adjusting trim or throttle. There is no prohibition on my allowing a passenger to manipulate the controls, however as PIC I remain responsible for the safety of the flight.

If the passenger is not required to be a member of the flight crew then the CAA argument about an instructor is irrelevant.

It might be argued that the PIC needs an instructors rating under Art 80 of the ANO which deals with the requirement for an instructor to hold the rating, however Art 80 starts off by saying

As this flight was not for these purposes Art 80 does not apply.

The whole thing smacks of someone in authority who knows what he thinks the rules ought to be rather than what they are.

None of which should detract from the fact that the PIC is responsible for the safe conduct of the flight. There needs to be a formal handover of control when one pilot ceases to be PIC and another assumes the role.

Similarly there nees to be a formal handover when PIC hands over the controls to someone else and when he takes them back.

Both parties need to clearly understand and accept the handover, and the difference between the two scenarios. If there is a change of PIC then the former PIC cannot give instructions to the new PIC or unilateraly take back control.

It all reminds me of a spat I had with the CAA after a medical, in which I had discussed my use of Ceterizine for hayfever (which makes some people, but not me, drowsy). My AME was happy with me taking it. However, as it was on the medical form, I then received a letter from a nurse at the CAA telling me Ceterizine was not allowed for flight crew, but not quoting any authority for this. I gave in - I wasn't up for the fight - and now use Loratadine, which means my hayfever is less well controlled and more of a flight safety risk. Ho hum.

There are definitely people in the CAA* who wish the regulations said something they don't, and so give their opinions as if they were facts.


*not just the CAA, I have the same problem with other organisations I deal with.

I always thought of the 90 day to be a protection for pax that were clueless.

I always thought that another licensed pilot of what ever flavour you like and even if they were only ATPL 747 rated knows the risks and would know that the person was uncurrent. Therefore a licensed pilot should be allowed on board outside the 90days but not anyone not holding a current license.

The only reason why I say current is to get something definite of yes no.

...and your evidence for that is..???

What I would say is never to trust a colleague not to drop you in it when it all goes to worms.

When we set up our group many years ago, the insurers required a copy of our group rules, part of which stated currency rules.

If this incident had happened in our group I have a fear that we'd be having to get the money from the surviving group members.

Why should he need to fly with a group check pilot? All group aircraft that I have seen the insurance covers instructors and group members with an instructor, just find a competent instructor, there are plenty around (of which Irv is one) who is capeable in your aircraft, and get the currency done with him.

It's the "some time after the flight bit" which suggests that at the time he thought he was PIC and later decided that he was not. I'm not stating as a fact that he was led to that decision by the investigation, simply suggesting that it's difficult to escape that conclusion.

Fox - I think these are just the rules for this group. If you havn`t flown for 60 days? (will check with mate who used to be in group) you have to go up for a check ride.

I can understand that, and if over 60 days and under 90 then it can be done with a group member who is not an instructor as the person being checked is still legal (and the other pilot is STILL technically a passenger), but I cannot see any reason for a check with a group member if one has been done by an instructor.
The only reason I could see for this would be if the aircraft in question was a particularly exotic or strange handling one with no instructors around who were considered competent on it.

I'm not sure this is all that complex is it? Couple of guys, one with little experience full stop, the other with some but not recent experience piled in.

I know its fashionable to blame the CAA but I can't see how in this case! The rule is pretty clear unless your motivation is to blur it.

If you add some basic airmanship into the mix its not hard.

I don't think anyone is questioning the fact that this aircraft crashed because of a mishandled go-around, and of course that is not the CAA's fault.

The point of this thread is the understanding and application of the 90 day rule. You say it is 'not all that complex' and 'the rule is pretty clear'. If that was true the rule wouldn't have generated such a volume of discussion over the years. The rule is not clear to anyone who looks closely at the letter of the law, but it could easily be made crystal clear - and some of the responsibility for not doing that must fall on the CAA. Additionally if the 'spirit of the law' as the CAA see it, is not in alignment with the 'letter of the law' as it is written, then they should jolly well rewrite it.