135 operations

[Don]

An aircraft is privately owned.

The local FBO manages the aircraft (hangers it, does maintenance in an in house shop, provides a pilot for the owner)

A local company pays the FBO for say 100 hours of flight time and the FBO provides (with the owner's consent) the airplane and one of the pilots.

Smells like a charter service to me. What do the experts say?

On another note; how much liability does the pilot take on? If you work for the FBO (I don't) as a pilot and it turns out that someone at the FSDO decides that flight was an illegal charter do they go after the poor helpless pilot that had no idea who owned the airplane or what arrangements were made by the FBO?

 

[FN FAL]

An aircraft is privately owned.

The local FBO manages the aircraft (hangers it, does maintenance in an in house shop, provides a pilot for the owner)

A local company pays the FBO for say 100 hours of flight time and the FBO provides (with the owner's consent) the airplane and one of the pilots.

Smells like a charter service to me. What do the experts say?

On another note; how much liability does the pilot take on? If you work for the FBO (I don't) as a pilot and it turns out that someone at the FSDO decides that flight was an illegal charter do they go after the poor helpless pilot that had no idea who owned the airplane or what arrangements were made by the FBO?

Is there really such a thing as an "illegal charter"?

Isn't that the same as using the term "illegal weapon" when there is no such thing?

 

[Lear Wanna Be]

Well, if you want to be sure ask the boss or customer if there is a signed lease for the 100 hours of usage. Might be a good idea to see it also. If no lease, then this is a 134 1/2 flight, unless you are a charter company with checkrides and all the BS taken care of.

AOPA has a book that you can buy called "91 vs. 135" or something like that. In it there is an article about a flight instructor in WI that came back from a lesson and then the boss came out and said take this guy to such and such place. The guy turned at to be the local police chief, not that it really matters. Well this instructor gets a call from the FAA a few weeks later. Somebody turned him in or the boss set him up, who knows. The instructor said he was just doing what he was told by the owner and thought this guy was a friend or relative. He also mentioned that he did not even receive any compensation for the flight, so how could he be in violation. Well in the end, he was violated and lost his ticket for a year or so. Think it went on to say they did nothing to the operator.

Goes to show ya, cover your backside.

 

[Lear Wanna Be]

Same book mentions that the FAA views "good will" as a form of compensation these days.

 

[Rick1128]

Sorry guys but that is a charter. Even if the customer signs a 'lease' for 100 hours. There are specific requirements for a lease for it not to be charter. And the FAA will normally go after everyone they can.

 

[pilotyip]

Yep it looks like charter, the FBO is providing for a fee for all of the pieces you need to move something from point A to point B. to include, airplane, pilot, insurance etc. The FBO is being compensated in the form of a fee. Fits the definition of holding out.

 

[LJDRVR]

It's a charter. Don't go anywhere near it. (The fuzz will violate the crew for dozens of regulations when they find out.)

 

[avbug]

On another note; how much liability does the pilot take on? If you work for the FBO (I don't) as a pilot and it turns out that someone at the FSDO decides that flight was an illegal charter do they go after the poor helpless pilot that had no idea who owned the airplane or what arrangements were made by the FBO?

The issue of holding out isn't really relevant, but the issue of operational control certainly is.

As a pilot, you always share in operational control. How much liability does a pilot take on? If you're the PIC, all of it, all the time. That's why you're PIC...you assume ultimate authority for the flight, for the safe outcome of the flight, for the legality of the flight, for the airworthiness of the aircraft, for the actions of the aircraft, and the resulting fallout of all of it.

If you flew cargo and didn't ask what was aboard, and upon landing learned that you'd just hauled a hundred kilos of cocaine, do you think you might be held responsible, even though you didn't know what was aboard? Of course you would. You are responsible for knowing what's on board.

Is a pilot who doesn't know he's flying an illegal charter (yes, there is absolutely such a thing, and yes, there is absolutely an illegal weapon) responsible merely because he failed in his duty to determine the legality of the flight before agreeing to undertake it? Absolutely, yes. You're required by regulation to become familiar with all aspects of the flight before you accept it or undertake the operation. Remember 14 CFR 91.103? It doesn't just apply to runway lengths and fuel. It applies to EVERYTHING.

The FBO providing the aircraft and pilot, and accepting money or compensation to transport persons or property from one point to another. This is the essence of a 135 operation, being performed without a 135 certificate...lacking the certificate, this becomes an illegal operation.

The fact that another company owns the aircraft (other than the FBO) is largely irrelevant, except that the other company that owns the aircraft shares in the liability. The ownership doesn't affect the legality of the charter operation. The FBO has obtained by lease or agreement an aircraft, and is providing flight services to a client. Those flight services include provision of aircraft and pilot; the services are transportation by air for compensation or hire from one point to another. The FBO enjoys operational control.

A company for whom I flew some years ago was affiliated with another company that did something similiar to this. The affiliate company (I'll call Company B) was approached by the CEO of a major insurance company with a request for corporate services. Company B leased an Astra and a Lear, and performed in the capacity of a corporate aircraft for the insurance company. Company B held a 135 certificate for small piston airplanes, but did not attempt to include the turbojets on the 135 certificate. Company B asserted that the turbojet operation was for one client who had full operational control, called the shots, made the arrangements, and flew only their own personnel on company missions, and didn't accept compensation from any passenger.

Company B provided the aircraft to the insurance company, for a fee. Company B's position was that they were leasing the aircraft to the insurance company. Company B also provided the pilots, and later attempted to have the insurance company pay the pilots to get around any issues there.

The FAA proposed very large fines, revocation of the pilot certificates, revocation of Company B's 135 certificate, and shut the operation down.

The soloution for company B was to get rid of the Astra, and take a Lear from the company for whom I flew. From then on all flights were conducted under 135, on our company certificate, using pilots on our certificate, and the FAA was happy.

I don't have time to research them right now, but numerous legal precedents are available regarding this issue...especially companies trying to form loopholes or dodge the regulation by setting up their own avenues to avoid Part 135 certification and cost.

Regardless, the pilot most certainly can be violated for taking the flight. Ignorance is no excuse, and is a poor reflection on the pilot. It's the pilots JOB to know what's going on, and most absolutely will the pilot be held accountable for that knowledge. Ignorance in a pilot is never a positive attribute.

 

[FN FAL]

(yes, there is absolutely such a thing, and yes, there is absolutely an illegal weapon)

Avbug, I finally got you on something you SOB! Hahahahahah.

There is no such thing as an illegal weapon. You're telling me a cop comes up to an M-60 sitting behind a tree and arrests it for being illegal and give it some miranda warnings?

Find me one law, federal or state, from the CFR's or the state codes, that even uses the language... "illegal weapon".

I'm not talking about some news story, I'm talking about the law. The law regulates the possession as illegal, not the firearm.

Freeze you illegal M-60, you're under arrest! Hahahahahahahaha...

 

[avbug]

No, you really don't "have" something on me, or the weapon, for that matter. If a weapon is outlawed or restricted, or in other ways controlled, and exists contrary to that regulation, it is illegal. While the government may not "arrest" the weapon (don't be an idiot), the government may certainly confiscate and destroy it.

While regulations and codes exist that make use or ownership or sale or posession of that weapon illegal, the weapon itself may also be illegal.

In most jurisdictions a destructive device, such as a bomb, is illegal. Building it, owning it, using it, posessing it, yes...but the weapon itself is prohibited. When found, it's not given a good home or put in a museum. The builder, owner, user, is arrested, and the bomb destroyed. Because it's illegal.

An unairworthy aircraft won't be issued a violation. The person who flies it, or the owner who allows it's unairworthy operation, or the operator who fails to make it airworthy will be violated. But the unairworthy aircraft is still unairworthy, and illegal.

A charter flight which is not conducted in accordance with charter regulation (ie Parts 119 and 135, in this case) is an illegal operation, and the FAA refers to it in exactly that terminology in numerous legal interpretations and enforcement proceedings.

If a charter flight is not legal, it is illegal. No, the FAA doesn't arrest the flight. The FAA doesn't arrest anybody. The pilot may be fined or may suffer certificate or administrative action. The owner may suffer the same, and the operator may suffer the same. But the essence and basis of each sanction is the operation itself, which is illegal...an illegal charter to which all penalties, sanctions, revocations, suspensions, fines, etc, may be attached and upon which each is predicated.

A weapon banned by law is an illegal weapon. Posession of the weapon is another matter entirely. A charter operation not conducted in accordance with the regulation is an illegal operation. Any prosecution stemming from that operation is another matter entirely, and doesn't negate or change the fact that the operation is conducted illegally, and is therefore an illegal operation. Spin it any way you like, and it won't change that fact.

 

[FN FAL]

A weapon banned by law is an illegal weapon. Posession of the weapon is another matter entirely.

They don't ban the weapon, they regulate the possession. And in some cases, the law cannot regulate the possession...because it violates interstate commerce laws. United States v. Lopez...lopez brought a gun to school in violation of the Federal "Brady Bill" which prohibited firearm possession within 1000 feet of a public school.

No illegal gun here. Possession is regulated.

United States v. Stewart...Stewart, a convicted felon, is found in possession of home made machine guns. Of which manufacturing, possession and transfer of possession, are regulated by a federal tax scheme called the National Firearms Act of 1934, as greatly affecting "interstate commerce".

Stewart appealed his federal conviction of making and possessing unregistered non-taxed machine guns on the argument that they were made from an original design and were made from pieces parts not traded in interstate commerce as machine guns in and of themselves. Stewart's argument that his possession of these home made machine guns is neither taxable, nor regulated under the NFA of 1934 as greatly affecting "interstate commerce" because he didn't sell them nor did he have plans of selling them across state lines.

Stewart's appeal was heard by the 9th Circuit Court and his conviction for possessing unregistered machine guns was overturned and the lower court appealed it...where it goes from here? Who knows...but I think we'll be hearing more from Justice Alito on this matter in the future, especially considering his dissent on US v. Rybar.

Stewart will be spending considerable time in prison for being a felon in possession of a firearm however, because it is illegal for a felon to possess a firearm. Oooops, there's that nasty word possession again.

Possession is what's regulated...Otherwise, how do you explain a Class II manufacturer buying an UZI kit at a gun show and making it into a Post 1986 Dealer Sample machine gun and transfering that possession tax free to Class III dealers, Class II manufacturers and government agencies, when three illinois state troopers have been indicted by the federal government for possessing unregistered machine guns? Why? Because it is the possession that is regulated.

 

[FN FAL]

So now that we got that out of the way, would someone please produce the administrative court document that says,

United States v. Joe Blow in the case of "Illegal Charter".

What does the complaint say at the top?

Does it really say "Illegal Charter"?

 

[avbug]

Idiotic semantics. If a charter operation is in violation of the regulation, it is illegal, and therefore an illegal charter operation. Period.

Call it whatever you want. No amount of spin will change the fact that an illegal charter operation is an illegal charter operation, regardless of what you decide to call it. Neither will such a spin alter the potential for FAA enforcement and prosecution.

 

[Van Hooydonk]

Wow that's cool FN FAL, there are no "illegal guns" and no "illegal charters", I guess there are no "illegal drugs" either.

 

[JAFI]

I do not think you will find "Illegal Charter" in the title.

However in less than 5 minutes (and off the top of my head) I have listed below 4 violations of the Code of Federal Regulations for flying a charter with out an Air Carrier operating certificate. I have also listed the "Money" fines from the Enforcement etc. Handbook. I did not even get into the Certificate action part.

Be careful out there with so called "Part 91 Charter" or 134 1/2 charter.

With out a GOOD Lawyer and personal knowledge of the rules next to you at all times when deciding what is charter or what is not: If it walks like a duck and quacks like a duck so you think it is a duck: it is most likely a DUCK. In the case of Charter: If it sounds like charter, smells like charter it is most likely Charter.

To demonstrate how important your decision of "should I take this flight"? Some references for your reading pleasure:

One side note. For every violation it is per flight leg not the number of times you are in court. So if you did a three leg flight, multiply the fine by three.

JAFI

----------------------------

119.5 Certifications, authorizations, and prohibitions

(g) No person may operate as a direct air carrier or as a commercial operator without, or in violation of, an appropriate certificate and appropriate operations specifications.


119.5 Certifications, authorizations, and prohibitions
(i) No person may operate as a direct air carrier without holding appropriate economic authority from the Department of Transportation.

119.5 Certifications, authorizations, and prohibitions
(k) No person may advertise or otherwise offer to perform an operation subject to this part unless that person is authorized by the Federal Aviation Administration to conduct that operation.

119.5 Certifications, authorizations, and prohibitions
(l) No person may operate an aircraft under this part, part 121 of this chapter, or part 135 of this chapter in violation of an air carrier operating certificate, operating certificate, or appropriate operations specifications issued under this part.


Order Number:
2150.3A


Subject:
Compliance and Enforcement Program [Incorporated Changes 1 thru 28]

Order Date:
12/14/88


Initiated By:
AGC-300


2150. 3A
Appendix 4


With respect to certificate actions, multiple violations (i.e., multiple violations of a single regulation, a single violation of multiple regulations, or multiple violations of multiple regulations) may result in a sanction greater than the sum of sanction ranges for the particular violations cited. Where a certificate action for multiple violations does not involve qualifications, but rather is solely disciplinary or punitive, a suspension for a fixed period of days should be imposed to prevent or deter the violator and other persons similarly situated from committing similar violations in the future.

Whenever multiple violations demonstrate a lack of
qualifications or reason to believe that the certificate holder may lack qualifications, a remedial sanction such as revocation or suspension pending demonstration of qualifications is appropriate.


The Sanction Guidance Table describes civil penalties as
minimum, moderate or maximum for a single violation of a
particular regulation. These terms are defined as follows:

(1) Violations Committed by Air Carriers (on or after
12/31/87).
Maximum $7,500-$10,000
Moderate $4,000-$7,499
Minimum $1,000-$3,999


(3) Violations Committed By Air Carrier Personnel.
Maximum $750-$1,000
Moderate $550-$749
Minimum $500-$549

(4) Violations Committed By Part 125 Operators.
Maximum $750-$1,000
Moderate $550-$749
Minimum $400-$549

(5) Violations Committed By Part 125 Personnel.
Maximum $750-$1,000
Moderate $550-$749
Minimum $500-$549

(6) Violations Committed By General Aviation Owners,
Operators, Mechanics, Agencies, and Non-Certificated
Persons.
Maximum $750-$1,000
Moderate $550-$749
Minimum $500-$549

In selecting an appropriate sanction outside the normal range, various aggravating and mitigating factors and circumstances should be considered. These include the factors listed in FAA Order 1000.9D and FAA Order 2150.3. With respect to individuals, the following should also be considered:

1. Significance in degree of hazard to the safety of
other aircraft, persons or property in the aircraft or on the ground, created by the alleged violation;

2. Nature of the violation - inadvertent or deliberate;

3. Past violation history (since past compliance should
be the norm, this factor is considered only to assess the need for a greater than normal sanction);

4. Alleged violator’s level of experience;

5. Attitude of alleged violator;

6. Nature of activity involved - private, public or
commercial;

7. Ability of alleged violator to absorb the sanction;
and

8. Demonstrated lack of qualifications.

 

[lawfly]

Just skimmed the opinion in US vs. Stewart. The court at one point refers to "legal parts", when referring to some of the component parts. That would seem to imply that there could also be such things as "illegal parts". It is always the person who is "arrested" (FN FAL: The weapon is not arrested; the person is arrested.) Does that make the person illegal? What does "illegal alien" mean and is that term used in any court opinions? (Yes, it is.) And what does FN FAL mean when he states that the 9th Circuit "overturned" Setwart's conviction, but the lower court then "appealed it"? Procedurally, what does he mean? The "lower court" was not a party to the 9th Circuit proceedings as I read that court's opinion, and the procedure for the losing party at the Circuit Court level seeking further review is almost always to fie a petition for writ of certiorari with the U.S. Supreme Court--not an appeal--and it is a discretionary review which is rarely granted. The lower court would have no standing to seek certiorari review of the 9th Circuit decision. (Incidentally, the 9th Circuit reversed in part and affirmed in part.)

 

[AngelKing]

If you flew cargo and didn't ask what was aboard, and upon landing learned that you'd just hauled a hundred kilos of cocaine, do you think you might be held responsible, even though you didn't know what was aboard? Of course you would. You are responsible for knowing what's on board.

Avbug, do you think for one second that with all of the UPS and FedEx flights that fly every night, the crews know what is in all of the containers? I can't even count how many times we have unknowingly brought in drugs, contraband, etc, that was found by customs and nothing has ever been asked of the flight crew. Now if drugs were found in the aircraft structure, that would be a different story.

AK

 

[avbug]

I believe you entirely missed the point.

 

[AngelKing]

I believe you entirely missed the point.

Nope, don't believe I did. You said a Captain should always be responsible for knowing what is in his cargo load. I am telling you that is not always possible. Responsibility can only go so far. You say the Captain is responsible for everything that goes on in his aircaft.

Another example: true story. Captain tells qualified F/o to make sure on his preflight to check the cowling latches. F/O comes back from preflight and says everything is ready to go. Captain then ask if he checked the latches, F/O says he did(it was raining very hard). During the flight one of the cowlings pops open(a Merlin IVC) due to unlatched latches. Crew lands safely. Company tries to fire Captain saying he was responsible. Was overturned by a company mediation board on the grounds the Captain fulfilled his responsibility by tasking the F/O to check the latches. Company wound up firing the F/O and mechanic who signed off the airplane.

AK

 

[A Squared]

The FAA looks at a number of different aspects of the arrangement. One of the things they look at is whether the plane and pilot are supplied by a single entity. It they are, then chances are very good it is a charter and not a lease. There is an NTSB decision on a virtually identical situation, Administrator v. Nix. Nix lost. There was a lease involved, but that didn't make a difference.