It has been said that the most painful accident is one that could have been prevented. That holds particularly true in aviation when a pilot’s failure to identify risk leads to a lack of situational awareness and poor decision making resulting in a fatality. This becomes obvious when you read the reports generated by the National Transportation Safety Board (NTSB)—you see the pilot’s actions and find yourself wondering, “Why didn’t the pilot declare an emergency and get priority handling from ATC?”
While declaring does not guarantee a way out of a bad situation, it can connect a pilot with more resources such as air traffic control, which because of the nature of the job may have a better grasp of the options available.
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Joe Sedor, chief technical adviser for space and advanced aerospace technology at the NTSB, said one of the most painful aspects of investigating accidents is that you see the chain of events and the poor decisions made by the pilot who may not have realized they were in an emergent situation. Therefore, they did not declare an emergency to ATC, which would have resulted in the pilot getting priority handling and might have resulted in a different outcome of the flight.
One accident that comes to mind is the crash of an Air Ambulance King Air 90 in Hawaii in December 2022. Per the NTSB report, the aircraft was on an IFR flight en route to pick up a patient on a neighboring island at night over the ocean. The aircraft was equipped with a cockpit camera that captured the entire instrumentation for both the left and right seats, as well as the center pedestal and overhead panel. Approximately 13 minutes into the flight at an altitude of 13,000 feet, the airplane’s vertical gyro failed, which subsequently failed the pilot’s Electric Attitude Director Indicator (EADI), which then also caused the autopilot to disconnect. This resulted in the pilot having to manually fly the airplane using the copilot’s EADI.
“The pilot was trying to fly by looking at the instrument on the other side of the cockpit,” said Sedor.
The NTSB report noted that “the pilot did not declare an emergency, nor did he inform air traffic control that his electric attitude indicator had failed and that his autopilot had disengaged.”
The aircraft then entered a series of banks and turns. ATC was in communication with the pilot, as the airplane entered several right- and left-hand banks and rolls and entered a steep descent while in a bank angle. ATC asked the pilot to verify his heading. As the pilot responded, the airplane bank angle increased to 90 degrees and the airspeed exceeded 260 knots, then the aircraft experienced structural failure and hit the water.
“If he had declared an emergency, he would have been given priority, and could have returned to the airport which had a little better weather than his destination,” Sedor said. “ATC could have given him shallower turns, but they were just treating him like a regular IFR flight. With the video you could see exactly what the pilot was seeing, yet he never declared an emergency.”
In the NTSB final report, the pilot’s failure to declare an emergency is listed as a contributing factor to the crash. There have been many others, Sedor said, such as the 2020 crash of the helicopter carrying former NBA star Kobe Bryant.
“The pilot requested Special VFR for low ceilings and visibility, but didn’t really express to ATC the issue he was having trying to maintain clearance from the clouds,” Sedor said.
Declaring an emergency does not automatically trigger notification of the NTSB, Sedor said. Although NTSB 830.5 mandates when notification is required—such as the failure of a cockpit instrument aboard an airliner, which is not terribly uncommon, but because the nature of the crewed environment is not as critical as it is for a single-pilot operation.
“When an air carrier declares an emergency due to a loss of a VOR or other instrumentation, I get an email. It is part of the airline company operating procedures. Remember this is a crewed environment,” said Sedor, noting they have more resources than someone flying a single-pilot operation in a GA environment.
Yet GA pilots are sometimes reluctant to declare, fearing they will get into trouble with the NTSB or FAA. That is the wrong attitude, Sedor said.
“When you declare, you can get more information and whatever assistance you tell the controller about what is happening,” he said. “Getting their help is better than trying to do it all by yourself.”
Sedor, whose background includes experience as a test pilot—an aspect of aviation where you anticipate an anomaly—said some GA pilots don’t fully embrace the potential for encountering an emergent situation during the flight, and as such they are not psychologically prepared to ask for assistance and/or declare an emergency.
“General aviation pilots have to make a decision on the ground during the preflight that if they encounter an emergency situation, they will declare an emergency,” said Sedor, adding that at the airline level, crews are trained to inform ATC of an abnormal situation and ask for priority handling as part of their standard operating procedures.
There is usually a report that goes along with this, he said, as the crews are trained to report and document these situations.
The FAA Bogeyman
One of the reasons that GA pilots are reluctant to declare an emergency could be from bad information they have gleaned from tribal knowledge about potentially getting into trouble with the FAA.
“They shouldn’t be,” said Ian Arendt, senior attorney for Aircraft Owners and Pilots Association’s Legal Services Plan. “The main reason to declare an emergency is to get priority treatment from ATC. ATC can’t help if they don’t know you’re having trouble. True, you might get a call from an Aviation Safety Inspector. Generally, the inspector only wants to know whether there is an impact to aviation safety. I’d rather be talking to an FAA inspector than an NTSB accident investigator. Additionally, you can deviate from any regulation necessary to meet that emergency.”
Arendt wondered if some pilots may be convoluting the meaning of FAR 91.3(c), which states: “Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon request of the Administration, send a written report of that deviation to the Administrator.”
“Upon request” is the key phrase here, Arendt said. He added that when someone from AOPA’s legal service team meets with a pilot who has had an accident or incident or there has been an equipment failure, and the client states they didn’t declare an emergency, “we ask ‘why not?’ Declaring an emergency doesn’t have a lot of legal significance. It only gets you priority treatment with ATC. And if you are not comfortable declaring an emergency, you can also use pan-pan, which will also get you priority handling.”
The FAA is cognizant of the reticence of pilots to declare an emergency but does not want them to take unnecessary risks putting themselves and others in jeopardy to avoid potential problems with the FAA.
“The FAA fully supports the use of emergency deviation authority when warranted,” the agency said. “It gives pilots the confidence to take the safest course of action without fear that the FAA will take action against their certificate or propose civil penalties. Declaring an emergency when appropriate is in the interest of safety, and the FAA encourages it.”
When the Emergency Is Over
“It’s always important to talk to competent legal counsel after declaring an emergency, even if it didn’t result in an accident or incident,” Arendt said. “Situations vary, but you should expect some sort of contact from the FSDO [Flight Standards District Office] following an emergency [or any occurrence for that matter].”
According to Arendt, ATC is under an obligation to report an occurrence to the FSDO if the situation has the potential to impact aviation safety.
“Talking to an attorney can help you understand what to expect and be better prepared for dealing with the FAA,” he said. “My one piece of advice for folks that are given a phone number to call is to call us before you call them. Generally speaking, you’re not obligated to talk to the FAA, but doing so could jeopardize any legal case.”
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It seems like every FBO and flight school has a story about a pilot who had an emergency, and in the aftermath it was determined they had violated FARs. This can muddy the water a bit, said Arendt.
“The FAA does not and cannot suspend a pilot’s certificate for declaring an emergency,” he said. “Any time a pilot’s certificate is suspended, it has to go through a legal process with the Office of Chief Counsel. Depending on the facts, it’s possible the FAA could question the pilot’s judgment and request a reexamination (709 ride). If they discover other violations, like flying without a medical or out of annual, those are fair game. Fortunately, the FAA’s Compliance Program is another tool in the FAA inspector’s tool chest and allows for regulatory noncompliance due to simple mistakes, flawed procedures, diminished skills, etc. be resolved through corrective action.”
The AOPA Legal Services Plan has benefits specifically for enforcement actions and aircraft accidents, Arendt added.
“Any AOPA member with Pilot Protection Services is enrolled in the Legal Services Plan,” he said. “The first step is to call us. We’ll schedule a consultation with one of our in-house attorneys, like me. Our job is to provide initial legal advice to ensure you do not jeopardize any legal case and walk you through the process. We’ll also make a determination as to whether you’re entitled to a specific benefit under the Legal Services Plan.
“For covered matters, we’ll get you the contact information for local attorneys on our panel and pay for some of their time to represent you. Members that join the plan after the underlying event has occurred or who are calling about a matter not otherwise covered by the plan will still receive the contact information for local panel attorneys and a certificate for a free half-hour consultation.”
The Most Common Emergencies
A review of the NTSB reports reveals a surprising number of unscheduled off-airport landings caused by fuel exhaustion or a postmaintenance event.
“A lot of time it’s due to poor preflight planning, unfamiliarity with the aircraft, or failure to ensure fuel caps are secured,” Arendt said. “Checklists and good recordkeeping are extremely important. I highly recommend using a calibrated fuel quantity gauge before every single flight. Postmaintenance incidents are also common. A careful preflight inspection and thorough run-up could identify an issue while still on the ground. Also, I recommend making a couple laps in the pattern to ensure everything is working appropriately before departing.”
While you can’t mitigate all the risks in aviation, a straightforward way of addressing them is to practice and drill emergency procedures. Instead of the “once every two years with a CFI” for the flight review, commit to practicing emergencies the same way you commit to maintain your currency and proficiency—find a qualified CFI and go out and practice. While you hope you never need those skills, there may come a day when you’re happy you have them.
This column first appeared in the April Issue 957 of the FLYING print edition.
