Ace in the Hole

FAR Sec. 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 the section shall, upon request of the Administrator, send a written report of that deviation to the Administrator.

People often ask me if I had any emergencies during my flying career, and of course I did, everyone does, but there is a big difference between a simple engine failure on a lightly loaded aircraft and catastrophic failure that takes all of the hydraulics with it. I had the former, the pilots of United Airlines Flight 232 had the latter. We experienced high vibration on the center engine shortly after takeoff from Orlando enroute to Boston. I shut it down, converting our three engine L-1011 into a twin engine L-1011, circled back and landed. Except for the fact that it happened on Christmas Eve, where we spent the night, it was no big deal. The DC-10 that the crew, with the help of a check airman who happened to be onboard, managed to get on the ground in Sioux City, Iowa, after losing all hydraulic power had one of the most serious emergencies in all of aviation. So there are emergencies and then there are emergencies.

You won’t find this elaborated on in the regs, nor will you find a definition of an emergency anywhere in the regs or a list; i.e., “ The following are emergencies, everything else is not.” The reason is simple: an emergency is anything the pilot in command thinks it is. The pilot in command may be asked to explain later why he or she exercised his or her emergency authority, but the point is, “The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.” Period. If you have something that you consider to be an emergency, do whatever you have to do to resolve the matter. We’ll talk about it later, on the ground.

This means you don’t even have to “declare” an emergency. We often use the phrase, “the pilot declared an emergency,” and of course you can: “ATC, this is N1234X, smoke in the cockpit, unknown source, declaring an emergency, making a rapid descent for landing at the large airport five miles ahead.” That would be a good thing do, if you can, but “aviate, navigate, communicate” still rules. The fact the you didn’t “declare” an emergency doesn’t mean you didn’t have one. If you’re still not sure about that, reread 91.3 again. You won’t find the word “declare” there.

Back in my early days in aviation I flew for a corporation out of Lebanon, NH. The Chief Pilot and I took off one morning in a Falcon 20 and, on the climb, fairly high up, the door seal became detached creating a leak and resulting in a rapid decompression. We donned our masks, told ATC we were making a rapid descent and, once things were under control, I called ATC and told them what our intentions were (which was to descend to below 10,000 feet and return to Lebanon). When we got on the ground the tower told us to call Boston Center. All they wanted to know was, did we have an emergency? The Chief Pilot said, “Yes, we did. We may not have declared it but we did.” They said, “Fine, no problem, but since you did deviate from your clearance, we have to make sure you had an emergency.” And that was the end of that.

So does this make FAR 91.3 a “get out of jail free” card? No. It’s more like an ace in the hole. Let me try to explain. Let’s say you leave your aircraft by the fuel pumps with a standing order to top it off. Everyone working the line at the FBO thinks someone else fueled it, it gets put away with whatever fuel was remaining, and the next time you go fly you just get in and go, fail to note or disregard the fuel gauge, run out of fuel, declare an emergency and put it down in a field. You did have an emergency, and you won’t be violated for landing off field, but you will still be held accountable for careless and reckless operation because you failed to conduct an adequate preflight inspection and you were unaware of your actual fuel load. Your emergency authority won’t help you there.

So maybe it’s more like a carte blanche or a wild card: once I have an emergency I can do whatever I want. Not really. Paragraph (b) says you may deviate from any regulation “to the extent required to meet that emergency.” So there a limits. An emergency, for instance, does not justify doing what is convenient for you, like continuing on to your home airport. It allows you to land at the nearest suitable airport. After that your emergency authority runs out.

But here’s the important part that many pilots don’t fully comprehend: when bad things happen to good pilots, your emergency authority is your ace in the hole. This is a very powerful card the FAA has given you. Maybe the best way to illustrate this is with another “war story”. This one again involved an L-1011.

The trip was a charter from Newark, NJ to Oporto, Portugal. We were flight planned for one of the mid 30’s flight levels, I can’t remember exactly which one, but probably FL 330 at Mach .84. But when we picked up our Atlantic clearance we were held down to FL 280, still at Mach .84. I knew this meant we were going to be going like stink—the lower the altitude the higher the true airspeed for a constant Mach— but I also knew we would burn a lot more fuel per hour, and the net would be a negative, a higher fuel burn than planned. But we had a lot of fuel at that point, so I talked it over with the crew and we agreed to watch it closely approaching the Azores, which was on our route of flight, and if we didn’t like what the fuel remaining at destination looked like at that point we would shoot into Lajes. We had an “out.”

Approaching Lajes the estimated fuel remaining at Oporto looked good and the weather there was good, broken clouds, six miles visibility, forecast to stay that way. Estimated fuel remaining at the alternate, Lisbon, was a little bit tighter, but the weather there was even better, it was very unlikely we would ever need to go there and technically an alternate wasn’t even required anymore. So we trucked on.

That turned out to be a bad decision. The winds aloft shifted, the fuel situation got worse, and at some point I said, “We no longer have the option of doing a missed approach at Oporto and continuing on to Lisbon. Whichever airport we head to is the airport we’re going to land at.” The weather and the facilities at each were both good, and Lisbon was a little further away, so there really was no advantage to going there. So, again, we trucked on.

Arriving at Oporto, the flight engineer checked the ATIS and said, “We’re not approved for Cat III approaches, are we?” I said, “No…why?” He said, “Visibility is RVR 300 meters, ceiling indefinite. They are only approving Cat III approaches.” Oporto is right on the ocean, and a fog bank must have moved in. That visibility was well below our authorized landing minimums of 200 foot ceiling and ½ mile visibility. The L-1011 is perfectly capable of Cat III landings, its autoland system is probably the best ever made and will put you right on the centerline, right in the middle of the landing zone, on speed, every single time, and we often used it when shooting ILS approaches at or near minimums. But, due to the considerable extra expense of maintaining it to Cat III minimums, we were not authorized to use it below standard ILS minimums.

We no longer had the fuel to divert to Lisbon. We didn’t even have enough fuel to hold for awhile and hope conditions got better, which was pretty unlikely anyway. We were going to have to land at Oporto, Cat III authorized or not. And we did. The L-1011 autoland system did a perfect job—I knew it would. But it required me to exercise my emergency authority, my ace in hole, which I didn’t hesitate to do, nor should you if you find yourself in a jam.

Could I have handled this better? Absolutely. Everything I did was according to regulation and if the FAA had wanted to come after me for getting in a situation where I had to exercise my emergency authority and land below minimums they would have had a very tough time making the case. But just being legal is a fairly low standard. What I should have done, as soon as we got our clearance to cruise at FL 280 instead of FL 330, was call Stockholm Radio on HF and get a phone patch through to the company and have dispatch run another flight plan through the computer for FL 280, Mach .84, get current weather, talk to operations, and together come up with plan. It might well have been the same plan, but that help was available and I didn’t use it. Instead I took a “wait and see” approach that went sour and ultimately required me to turn over my ace.

I don’t want anyone to think for a moment that I am encouraging you to take a chances because you always have this ace in the hole to use if it doesn’t turn out alright. But I also don’t want you to make a bad situation worse because you were afraid to exercise your emergency authority. Do the best job as a pilot you possibly can, be as careful as you can, exercise good, conservative judgment , and when it still doesn’t work out, do whatever you have to do to get it on the ground. You have that authority. You’re the pilot in command.


(I want to thank my good friend Rusty Sachs, lawyer, former FAA Pilot Examiner and former head of the National Association of Flight Instructors, for reviewing this post and offering several very helpful suggestions.)