Assume Tom and Rick are flying a night cross country in a 172 from Mountainville to Springfield. Tom is a private pilot but has no instrument rating while Rick is a private pilot and does have an instrument rating. Before the flight, the two pilots agree that Tom will be the PIC while Rick will be sitting in the right seat. The flight is uneventful up until Tom accidentally flies into a deck of clouds and is now in IMC. Rick assumes flight controls, notifies ATC that they are now in IMC over mountainous terrain and requests an IFR clearance to climb/descend until they are back in VMC. Once they are back in VMC Rick cancels IFR and gives the controls back to Tom for the remainder of the trip.
Now when they land Tom is told to call the FAA for a possible violation. My question is: who would be at fault here? Tom accidentally flew into IMC while PIC but Rick is the one who took control since he had an instrument rating, so technically he assumed PIC, at least until they were back in the clear. If there were two PICs on the trip, wouldn't both get a violation? Even though Rick wasn't PIC when Tom flew into IMC, could it be argued that Rick needed to monitor the flight better?
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While Rick assumed control, he did so only after the violation took place. I would argue that Rick was operating under an emergency situation (at least during the time that he was PIC and any possible regulations were being broken) so he would be off the hook.
Note that the Feds like to do whatever they want and there really is little to no recourse available.
The only clear thing in your scenario is that the assigned PIC, who also flew the plan into IMC, would be likely violated.
Whether the other pilot would also be violated is a question that has no clear 100% answer. The FAA (and maybe ultimately a hearing officer, ALJ, the full NTSB panel, and the courts) would investigate and a decision on that would be reached, which might or might not apply the next time a similar scenario takes place.
If you're thinking that only one pilot can be violated, you're making a common mistake.
That's also leaving out the question of whether there's an accident or other circumstance that gets the civil or criminal courts involved.
Perhaps if they were to say to ATC "about to be IMC, request IFR clearance" than a violation could be averted. By saying that you flew into IMC and request a clearance, your pretty much declaring over the radio that you just violated an FAR...
But to answer your question, fault would probably lie with Tom the PIC. Rick may not have any administrative action taken against him, more of a "shame on you" type of thing…but you never know..
Perhaps if they were to say to ATC "about to be IMC, request IFR clearance" than a violation could be averted. By saying that you flew into IMC and request a clearance, your pretty much declaring over the radio that you just violated an FAR...
I can't see clouds at night, but a possible "out".
They can and will go after both pilots on board. If you were an active participant in the flight they will bust you, regardless of who was PIC. Just because it's a single-pilot airplane does not mean they cannot hold two pilots accountable.
As a practical matter:
1) don't confess, and don't lie. Don't say "we just went IMC," or "we're about to go IMC," just request an IFR clearance.
2) do not call the FAA after you land. All the reasons have been previously posted on these boards.
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