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| Carrying Intoxicated Passengers | May '08 |
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| By Robert B. Schultz, Attorney at Law |
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Federal Aviation Administration Regulations Part 91.17(b) states: "Except in an emergency, no pilot of a civil aircraft may allow a person who appears to be intoxicated or demonstrates by manner or physical indications that the individual is under the influence of drugs (except a medical patient under proper care) to be carried in that aircraft." If the FAA wants to nail pilots for violating its FAR, staking out the airport at Talladega, Ala., adjacent to the Talladega Speedway, is like shooting fish in a barrel.
That's what two FAA inspectors did on Sept. 28, 2003. According to one of the inspectors, on race day, this is one of the busiest airports in the United States. Sure enough, they observed some "happy, loud and boisterous" passengers board the respondent pilot's Piper Navaho and take off.
Defending the agency's regulation, an FAA investigator testified that you can't fly with passengers that are obviously intoxicated due to the endangerment of other persons on the aircraft. Yet the inspectors did nothing to prevent the aircraft from taking off, in this allegedly dangerous condition. Nor did they perform any kind of alcohol test. Nonetheless, the FAA charged the respondent pilot with violation of Part 91.17(b) as well as Part 135, for allegedly flying passengers for hire without a commercial operating certificate. (Sturgell v Nix NTSB Order EA-5374).
At trial court, FAA inspectors testified that they observed a male passenger who appeared to be "kind of disheveled" and on whom they could smell alcohol. In their opinion, the passenger obviously "had a couple of drinks during the day" and the passenger's general demeanor was "very happy, loud and boisterous." The inspectors said that a female passenger "appearing to have difficulty walking." She was "staggering a little bit," swaying and swerving.
"At one point she stumbled and bumped up against the rear fender of our car," the inspectors testified.
At trial, the male passenger admitted having a few drinks but denied he was intoxicated. The respondent pilot testified that he didn't notice whether anybody on the flight was intoxicated. Also, he didn't observe anything in particular about the female passenger, who didn't testify.
The inspectors also testified that the male passenger said he paid $1,000 for the flight. At trial, however, the passenger denied having paid anything for the flight and denied telling the FAA inspectors that he had done so. The pilot also denied he was paid. There was much testimony about the genesis of the flight but no corroborating evidence of alleged payments.
On the Part 135 issue, the trial court judge ruled: "Without some sort of corroboration of the payment, I find that the administrator's case falls short of proof by a preponderance that the flight was for compensation or hire." The judge further noted that the flight appeared to have been a joint venture, because the respondent brought his grandson to attend the automobile races.
If you've been reading my columns, you know that when the pilot and passengers have a common purpose, such as to attend a NASCAR race, it's much less likely to be a passenger-for-hire flight.
After dismissing the Part 135 charges, the judge went on to say, without further explanation, that Section 91.17(b) was "inapplicable." Did he mean inapplicable because Part 91.17(b) doesn't apply to a Part 91 flight? If so, he was wrong. Obviously, FAR 91.17(b) appears to apply to any flight. On the other hand, if the judge found FAR 91.17(b) inapplicable because the FAA failed to prove that the passengers were intoxicated, his ruling is strangely worded.
FAR 91.17(b) is, itself, a strangely worded regulation. It's a violation to carry a passenger who "appears to be intoxicated." Appears to whom to be intoxicated? Must the pilot actually see the passenger's intoxicated appearance to be liable? There's no regulation that requires the pilot to examine each passenger for intoxication. So it seems that the best advice for the pilot of a small airplane is to not observe passengers' behavior, so as not to be liable for violation of 91.17(b).
The good news is that I've never found a reported case where a pilot was found guilty of violating FAR Part 91.17(b).
Robert B. Schultz practices law in Denver and specializes in aviation law nationwide. He can be reached at bob.schultz@airportjournals.com and welcomes your comments and questions.
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