Hang on a second. According to your previous statement, you would consider your aircraft in an emergency situation, but you would not bother to declare that state?

I was always encouraged to use all tools available. If I would consider my aircraft in a state of emergency, I would see a declaration of that state, promptly accompanied by a request for the controller's phone number, a very useful tool.

I wouldn't consider my aircraft in a state of emergency in this case, but following your reasoning, I have to. The alternative is plummeting into the ground.

 

The NTSB Board has clearly ruled on this issue—the fact that a pilot does not

formally declare an emergency on his radio does not preclude reliance on

FAR Section 91.3(B ) as exculpatory.⁹⁶ However, a review of NTSB Board

decisions makes it clear that the declaration of an emergency will be treated

as circumstantial evidence that an emergency situation truly existed.⁹⁷

 

⁹⁶. Admin. v. Clark, 2 N.T.S.B. 2015, 2017 n.8 (1976).

⁹⁷. Scott, N.T.S.B. Order No. EA-4003 at 4-5.

 

 

http://web.law.und.edu/lawreview/issues/web_assets/pdf/83/83-3/83NDLR817.pdf

I rest my case... By not declaring an emergency while your aircraft is in a state of emergency, you're not exactly helping yourself. Also, I can't find any statement by the NTSB, or any other governing agency, which contradict that claim.

Let me say again, I do not consider the aircraft to be in a state of emergency in the scenario I specified. It WILL be if no action is taken, though.

 

But, I fail to see any reason to continue the discussion, really. There's quite a big patch of grey between the black and white laid out in your posts. The grey patch is there for a very good reason.

There is no requirement in 91.123  to declare an emergency. 91.123  © is clear that a pilot is only required to notify ATC of a deviation as soon as possible after the event.

 

© Each pilot in command who, in an emergency, or in response to a traffic alert and collision avoidance system resolution advisory, deviates from an ATC clearance or instruction shall notify ATC of that deviation as soon as possible

 

 

That's why I suggested reading the whole section.

I think the whole problem with this post is that each person is reading into the FARs what he feels that it should read (Reading into it) and not what it was intended for.

 

Each person is individually interperupting the FAR for what they see.

 

I have read it and know what my instructor and I feel that it means, and that is how it will be used. 

 

This thread could go on forever and never have a mutual agreement on what the FARs actually mean.

 

I, personally, agree most strongly with the way that Kyle has explained it, as that is the way that I was taught.

It's kinda funny, 5 pages ago we we're using the word common sense, Gerry seems to be good at reading documents but that's as far as it seems to go.

It's kinda funny, 5 pages ago we we're using the word common sense, Gerry seems to be good at reading documents but that's as far as it seems to go.

 

Yeah...

 

Love it that I'm quoting the AIM, too, which is essentially the FAA saying "this is how we interpret our own regs."  Since they're the ones who would be knocking down your door if you did something wrong, I'm really not sure why this is still a discussion.

 

...and why what I've said so many times hasn't sunken in yet.

Most of you are just going around in circles and splitting hairs! Just how many lawyers are simmers is amazing!

 

The only person "in command" of an aeroplane is the Captain! No one else not even Kings, Queens, Presidents, parliaments etc.

The regulations are laid down for guidance and "should" be followed. But, if in order to keep his/her aircaft in one piece and himself and others alive, he has to bend/break any regulations then he "must" do so!

 

Note "should" is not obligatory whereas "must" is!!

Love it that I'm quoting the AIM, too, which is essentially the FAA saying "this is how we interpret our own regs."

I can quote the AIM too

 

 

4-4-10. Adherence to Clearance

 

a. When air traffic clearance has been obtained under either visual or instrument flight rules, the pilot-in-command of the aircraft must not deviate from the provisions thereof unless an amended clearance is obtained. When ATC issues a clearance or instruction, pilots are expected to execute its provisions upon receipt. ATC, in certain situations, will include the word “IMMEDIATELY” in a clearance or instruction to impress urgency of an imminent situation and expeditious compliance by the pilot is expected and necessary for safety. The addition of a VFR or other restriction; i.e., climb or descent point or time, crossing altitude, etc., does not authorize a pilot to deviate from the route of flight or any other provision of the ATC clearance.

 

 

http://www.faa.gov/air_traffic/publications/atpubs/aim/aim0404.html#aim0404.html.1

 

Let's clarify my point. If the clearance includes a height restriction is the pilot entitled to break that on a whim or only if an emergency exists, or the deviation is in response to a traffic alert and collision avoidance system resolution advisory?

 

 

The regulations are laid down for guidance

 

They have the force of law

 

Federal regulations are specific details directives or requirements with the force of law enacted by the federal agencies necessary to enforce the legislative acts passed by Congress.

 

 

http://usgovinfo.about.com/od/uscongress/a/fedregulations.htm

 

 

I can quote the AIM too

 

Yet you're doing rather poorly at it.

 

Adherence to the clearance (the section you quoted) is contingent upon what I've cited a grand total of...what...ten or twelve times now?

 

Both the regs and the AIM clarification predicate a command instruction on that instruction being safe, and in line with the other regs.  As instructing a pilot to reduce speed below min safe is not safe, the instruction is invalid, and unenforceable by any part you've been quoting (and I've been shooting down countless times).

 

Your continuous assertions are like trying to tell people the sun revolves around the Earth.  You're welcome to talk until you're blue in the face, but they're simply not true.

 

Earth revolves around the Sun.

The way the regs and AIM are set up does not support your opinion.

 

Both facts, no matter how many new (or in most cases here nauseatingly old) ways you try to counter them.

You still didn't answer my question

If the clearance includes a height restriction is the pilot entitled to break that on a whim or only if an emergency exists, or the deviation is in response to a traffic alert and collision avoidance system resolution advisory?

 

When I'm bored at work, I come read this thread.

What's funnier, probably none of foreign pilots on international flights in US airspace know nor read those FARs or AIMs, yet they adapt reasonably well. Why debate so extensively then?

You still didn't answer my question

 

As far as this specific question is concerned, the way I see it:

 

On a whim? No. Why not just shut an engine down for the heck of it while you're at it? After all, you can always restart it.

 

If an emergency exists? I would hope so. If I was on a flight at the plane suffered a decompression or something else that warrants breaking a height restriction, he'd (she'd) better do it. This is similar to people blindly following their GPS into a river. "Must not deviate from instructions!"

 

TCAS or GPWS? Again, I'd hope so. 

 

The PIC is entitled to (required) to fly the plane in a way that keeps the passengers, the aircraft and himself safe in all phases of flight.

 

If a minimum safe speed is above 250/under 10k, then I would expect the PIC to break 250. If it becomes an issue with separation, then either a controller or TCAS (should) come online and either present a different vector or ask for a reduced speed. At which point the PIC can either comply or respond with something similar to "XXXXX, unable to comply".

 

Blatantly breaking the restriction just because someone wants to get home sooner is, of course, not acceptable. Because it would increase the risk and reduce safety.

 

And before somebody jumps all over me: No, I haven't read a single regulation other than what has been referenced here. So, no, I'm not qualified to tell anybody what the letter of the law says. However, my above statements appear to be common sense. 

What's funnier, probably none of foreign pilots on international flights in US airspace know nor read those FARs or AIMs, yet they adapt reasonably well. Why debate so extensively then?

 

+1

 

 

You still didn't answer my question

If the clearance includes a height restriction is the pilot entitled to break that on a whim or only if an emergency exists, or the deviation is in response to a traffic alert and collision avoidance system resolution advisory?

 

I already did.  Your citing of several different specific examples within the same main overarching theme only serves to waste time (of which I've spent a decent amount repeating myself here).  To humor you, though:

 

If a clearance has a height restriction that places the aircraft in an unsafe condition, then the clearance is invalid.  In a regulatory sense, it is treated as it never happened.  As such, 91.123 (the "only in an emergency or reacting to TCAS" stuff) never comes into play.

 

If you need specifics, here are specifics:

-Cleared to descend to an altitude that is too low: PIC may opt to not descend and clarify the altitude, or clarify while descending.  If an amendment is not received, the pilot may level off at an intermediate altitude.  If it is in error, ATC will provide a new altitude.

-Cleared to climb to an altitude that is too low: PIC may opt to attempt to clarify during the climb, but if an amended clearance is not received before the restricted altitude, then the pilot may continue the climb to a safer altitude.

 

Either way, your situation isn't quite realistic as controllers have minimum altitudes that they cannot bust, which are based on obstacle clearance.  Other than that (when flights are not vectored), there are hard altitudes on charts that a pilot could leverage if questioned.

 

If the pilot is not going to comply, the AIM notes that he or she must notify ATC.

 

Perhaps this will also help:

7110.65 2-1-1

The primary purpose of the ATC system is to prevent a collision between aircraft operating in the system and to organize and expedite the flow of traffic, and to provide support for National Security and Homeland Defense.

 

You'll note that nowhere in there does it say ATC is to be the police of the sky.

 

That part continues, but if you feel like going to read it, you'll find the above to be true throughout the entire document.  While the 7110.65 is essentially the controller version of the AIM, it is based off of FAA interpretations of the regs, to include their proper application.

 

The 7110.65 also backs up my arguments to the 250/10 issue.

 

 

 

However, my above statements appear to be common sense. 

 

haha - if that existed here, the discussion would've ended quite some time ago.

 

Welcome to Narnia!  I'm a talking Lion.  My name is Aslan.  There's a half goat-man around here somewhere, along with some lost children.