Private carriage or Common carriage?

[Tired Soul]

OK I should know this one but never bothered.

CPL IR ME somebody calls me can I take so and so to this airport>50Nm?
I think I can because I know these people therefore private carriage not common carriage. Am I right or not?
If I get ramp checked am I gonna be in a world of hurt?
What is the cut-off point between private and common carriage..?

 

[Weasil]

It depends... who paid for the cost of the flight? BY JOHN S. YODICE

[size=+2]S[/size]uppose a friend calls on Labor Day weekend to tell you that an air ambulance aircraft, along with its pilot, nurse, and doctor, is stranded because of a mechanical problem, and they need somebody to fly a mechanic to the aircraft to get it operational. He tells you that they have tried to get a charter but have been unable to do so. He asks if you would help. It's a good cause, and you would like to do it. Are you legally permitted to fly your own airplane to take a mechanic out and bring the crew back, according to the federal aviation regulations?

Decisions of the NTSB in pilot enforcement cases teach us a lot about the interpretation and enforcement of the FAA's regulations. Here is a case that helps to refresh our understanding about the kinds of flights that we can conduct as private operations, and at what point a flight could be considered commercial. The case also illustrates the importance of our right to appeal FAA enforcement cases to the NTSB, to bring some common sense and fairness to FAA actions.

FAR 61.113 is the regulation that specifies the privileges of the holder of a private pilot certificate. It also applies to ATP and commercial pilots when they are exercising only the private privileges of their certificates.

According to the regulation, a private pilot may act as pilot in command of an aircraft, including carrying passengers on board the aircraft. But, there are two very important limitations to these privileges, both of which involve the legal phrase in the regulations, "compensation or hire." A private pilot may not receive "compensation for hire" for acting as pilot in command of an aircraft. And, a private pilot may not command an aircraft that is carrying passengers for "compensation or hire," even if the pilot does not receive any compensation.

The regulation has exceptions to the "compensation or hire" limitation, which we have explained in earlier columns (see "Interpreting the Rules," October 1997 Pilot; "Charitable Flights," March 1996 Pilot; and "Shared Expenses," March 1995 Pilot), such as shared-expense flights, flights incidental to a business or employment, charitable airlifts, sales demonstration flights, and glider towing. None of these exceptions is involved in this case.

The respondent in this case, an automobile service station operator, is a private pilot and aircraft owner. He received a call from a friend who had received a call from the manager of an air medical transportation service. The service operates two helicopters as air ambulances. The manager learned late on a Friday afternoon before a Labor Day weekend that one of the helicopters, which was on a mission involving a nurse, a patient, a doctor, and a pilot, had a mechanical problem and was grounded on a nearby island. The manager made a couple of calls to commercial operators to try to arrange air transportation for his mechanic to the island to get the helicopter flying again. He anticipated that the flight physician and nurse would also need transportation back, but they returned by other means. Because it was a holiday weekend, he had difficulty finding anyone available.

Eventually he called a longtime acquaintance whom he thought was a commercial operator (he actually was no longer a commercial operator). The acquaintance indicated that he was not available to make the flight himself, but that he would try to get someone to do it. The manager eventually talked to the respondent. The respondent stated that he advised the manager in their initial telephone conversation that, although he did not do charter flights, he would take the flight. "He had asked how much it would be, and I said I wouldn't take any money." He agreed to help as a favor, not only to get an air ambulance back in operation, but also because "if it ever happened to me, I'd want somebody to help me." An NTSB judge would later characterize him as a "good Samaritan" and his help as a "good deed."

So that day, in his own Piper Lance, the respondent flew the mechanic to the island and came back with the helicopter pilot. The next morning, Saturday, he took the mechanic and the manager to the island to complete the repairs on the helicopter. Three flights were made in all.

Here is where the situation gets sticky. The manager received an invoice for $300 from the longtime acquaintance, and he paid it. But, the respondent never received any compensation for the flights — not even for the fuel. Nor did the respondent expect to get paid or otherwise compensated.

Even though the respondent himself did not get compensated and did not expect any compensation, the FAA contended that he carried passengers for "compensation or hire."

To demonstrate how strongly the FAA felt about it, the agency threw the book at the respondent. The FAA suspended his private pilot certificate for one year. The FAA not only charged him with violation of FAR 61.118 (now 61.113), but also a string of Part 135 violations (the part that governs commercial charter operators), and with careless or reckless operation in violation of FAR 91.13(a).

The respondent appealed his case to the NTSB. There he found more understanding of his situation. The Board granted the respondent's appeal and dismissed the FAA complaint.

The case before the Board seemed to turn on whether the respondent "should have known" that the flights were commercial. The NTSB distinguished an earlier, similar case decided by the Board in which the pilot claimed that he was giving the other pilot flight instruction and had no knowledge of any arrangement with the passengers. He failed to ask any questions about why the passengers were on the flight. In that case, the Board concluded that the pilot knew or should have known that the flight was subject to Part 135. The pilot was found to be in violation.

"The evidence in the instant case, on the other hand, does not support a similar finding. [The] respondent agreed to transport, in his own aircraft, [the ambulance service's] mechanic in order to help the air ambulance service regain the use of one of its two helicopters during a busy holiday weekend. He testified, and the law judge found, that he advised [the manager of the ambulance operation] the flight would not be a charter and there would be no charge. He did not allow [the manager] to pay for fuel, and the evidence did not show that he was ever reimbursed by anyone for the fuel he utilized," the Board stated. "Further, no evidence was introduced to show that respondent expected any return favor from or sought to build goodwill with [the manager], and there is no evidence to indicate that respondent worked in any way for or with [the former commercial operator]. There is also no evidence to indicate that respondent knew or should have known that [the former commercial operator] planned to charge [the manager] for the flights. In short, the evidence is insufficient to prove that the flights were operated for compensation or hire."

This case has several messages for us. It reminds us of the dual limitation on the privileges of a private pilot. Not only must a private pilot not receive compensation, but the pilot also may not carry passengers or property for "compensation or hire" even though the pilot is not being paid. If there is any payment or compensation for the carriage, a private pilot may not command the flight. Similarly, although an ATP or commercial pilot may be compensated for serving as pilot in command of an aircraft carrying passengers or property for compensation or hire, he or she must do so under the requirements of FAR Part 135. Even if the pilot in this case had an ATP or commercial certificate, he no doubt would have had the same problem with the FAA.

This case also cautions us to be on our guard to question circumstances that suggest passengers or property may be carried on a flight for "compensation or hire." Even if we don't actually know the status of our passengers or cargo, we are responsible if we "should have known."

Finally, this case teaches us how seriously the FAA considers such violations. A one-year suspension of a pilot certificate is pretty serious stuff.

 

[bobbysamd]

Private carriage v. common carriage

OK I should know this one but never bothered.

CPL IR ME somebody calls me can I take so and so to this airport>50Nm?
I think I can because I know these people therefore private carriage not common carriage. Am I right or not?
If I get ramp checked am I gonna be in a world of hurt?
What is the cut-off point between private and common carriage..?

You probably can, but you do must do it for free or share expenses.

14 CFR 61.113 may provide some guidance. It sets forth private pilot privileges and limitations. We know that commercial or better certificate-holders who charge must operate under Part 135, etc.

While 14 CFR 61.113 states that no person who holds a private pilot certificate may act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire, nor may that person, for compensation or hire, act as pilot in command of an aircraft, 14 CFR 61.113(c) carves out an exception for sharing expenses:

(c) A private pilot may not pay less than the pro rata share of the operating expenses of a flight with passengers, provided the expenses involve only fuel, oil, airport expenditures, or rental fees. (Years ago, the reg only said that a private pilot may share expenses with pax.)

So, if your passenger foots no more than half the bill, you are probably legal.

However, the John Yodice article, above, gives one pause. After reading it and realizing how unduly aggressive the FAA can be, I would be inclined to decline the flight altogether.

 

[Mmmmmm Burritos]

Guys, he's a commercial pilot, not a private pilot. You should be fine with your flight because you didn't "hold out" to them since they called you. If they have their own aircraft they want you to fly, that's even better. This is private carriage and you are ok. Just don't fly with these guys too often and especially dont make a contract.


Just don't fly any larger planes
FAR 119.1 When common carriage is not involved, in operations of U.S.-registered civil airplanes with a seat configuration of 20 or more passengers, or a maximum payload capacity of 6,000 pounds or more.

Also check out FAR 119.23 and 119 subpart C. You'll have to get in an FAA approved drug test program.

 

[midlifeflyer]

It's a tough call. The difference between the two is a very, very fuzzy line based on "holding out"
Here's the problem.

"Holding out" doesn't have or really need an FAR definition. As one of the traditional tests for the difference between "private carriage" and "common carriage", it's legal meaning goes back to well before the Wright Brothers' flight. It's use for FAA enforcement purposes is like the "only incidental to a business" test, applied and defined by FAA opinion and case law.

All it means is that you are letting the public that you are available for transportation. "The public" includes any segment of the public that you are trying to attract. And it doesn't have to be many. For example, if you are one pilot with a 172, how much business can you possibly do? You don't have to advertise either - word of mouth that people "know" you are available is enough.

In addition to reading though a couple thousand pages of FAA legal opinion and case law, probably the best bet is to look at AC 120-12A PRIVATE CARRIAGE VERSUS COMMON CARRIAGE OF PERSONS OR PROPERTY. It's available online at <http://av-info.faa.gov/dst/120-129.htm>

Problem is that even after reading it, you won't really know the answer to your question. This is an area in which, if you come under their radar screen, all doubts get resolved against you.

BTW, sharing expenses is not the answer. Since the pruppse of the flight is to meet these people's need for transporation, it does not come under the shared expense exception. It's not written specifically in 61.113, but the exception for sharing expenses applies not only to shared costs but shared purpose for the flight:

==============================

the only allowable share-the-costs operations are those which are bona fide, that is, joint ventures for a common purpose with the expenses being defrayed by all passengers and the pilot. Nor does Section 61.118 permit pilots who want to build up time toward their commercial pilot certificates to carry expense sharing passengers to a destination at which they have no particular business.

- 1985 FAA Legal Opinion

==============================

In other words, you may share expenses with you friend Joe when you fly to go together to his sisters wedding. You may =not= share expenses to fly your friend Joe so that he can go to his sister's wedding.

There's a timely example in an earlier (1977) FAA Legal opinion. A pilot wrote to ask whether he could fly a political candidate around just for the cost of fuel as his way of contributing to the campaign. FAA Legal said no, in part because the pilot asking didn't say whether "just fuel" would be a pro-rata share, but also because the purpose of the flight was not a joint venture:

==============================

...to come within the exception to FAR 61.118(b), the flight must constitute a joint venture and there must be an equal sharing of the operating expenses of each flight between the pilot and all the passengers involved. Since the candidate would be paying for the total gasoline cost and it is not a joint venture (you are not running for office), this operation would also be in violation...

==============================

 

[transpac]

"Holding out" isn't really the issue in this case. That question is pertinent only to the type of operating certificate and DOT economic authority required. The bottom line is that no person can transport persons or property for compensation or hire unless said person holds an operating certificate or does it under one of the exceptions (such as cost recovery, cost sharing, etc.) permitted in the FARs.

 

[standaman]

You can not be United, Delta, Ups, NetJets, and of them

A good way I always looked at it if you look like any airline, frieght, or demand carrier you should probably have a certificate to go along with it. Unless you are in support of your own business or the like I would be careful of opportunities to make money. A commercial license allows you to work for a commercial operator but not be one. Plane and simple. I know there are some gray areas but I believe you should always take a more conservative view in regards to this topic.

 

[pilotman2105]

I know there are some gray areas but I believe you should always take a more conservative view in regards to this topic.

More pilots would be alive today if they would apply that wisdom to all aspects of flying, not just the holding out issue.

 

[bobbysamd]

Conservative interpretation of the regs

I know there are some gray areas but I believe you should always take a more conservative view in regards to this topic.

More pilots would be alive today if they would apply that wisdom to all aspects of flying, not just the holding out issue.

I agree.

If you're not sure, don't do it.

 

[Weasil]

You should read the above story again MMm Burritos. The FAA go after commercial pilots too. It is not as simple as you make it sound.

Guys, he's a commercial pilot, not a private pilot. You should be fine with your flight because you didn't "hold out" to them since they called you.
.

"Even if the pilot in this case had an ATP or commercial certificate, he no doubt would have had the same problem with the FAA."

John S. Yodice.