Private carriage or Common carriage?

[Tired Soul]

Thanks alot for all your answers people...

Still does not really make it cut and dry does it?
What about flight instruction with a student that is not rated in the airplane (eg multi) taking passengers. I know I'm pushing it here but some opinions please.
Guess it depends on who pays the bill, the student or the pax?
What if they pay the student first and he pays for the plane?
As you might guess I just did a flight like this, was kind of concerned about it initially but decided by taking the student cutting the risk a little.
Well "student" he's a CFII but does not have a multi rating yet so it's not like I'm endangering pax here.
Still curious if I could have talked my way out of this one......

 

[Weasil]

so who paid for the flight?

 

[transpac]

Thanks alot for all your answers people...

Still does not really make it cut and dry does it?
What about flight instruction with a student that is not rated in the airplane (eg multi) taking passengers. I know I'm pushing it here but some opinions please.
Guess it depends on who pays the bill, the student or the pax?
What if they pay the student first and he pays for the plane?
As you might guess I just did a flight like this, was kind of concerned about it initially but decided by taking the student cutting the risk a little.
Well "student" he's a CFII but does not have a multi rating yet so it's not like I'm endangering pax here.
Still curious if I could have talked my way out of this one......

It is cut and dried, and the FAA has heard it all before. So, I doubt if you'll be very happy after you get ramp checked. Losing your certificate and aviation future can be tough. But, the real liability comes if you prang the airplane and hurt someone during one of these flights. I've seen it happen and it isn't pretty when the survivors, the insurance company, and the FAA start talking.

 

[Tired Soul]

Well they paid.


So I guess next time we have to share expenses?...

 

[midlifeflyer]

Well they paid.

So I guess next time we have to share expenses?...

Check my earlier post. That doesn't cut it either.

 

[avbug]

Sharing expenses, going "pro rata" is often held as an excuse for conducting quasi-charter flights, and as other posters have said, it still doesn't "cut it."

Whereas the FAA has held repeatedly that even the logging of flight time is considered compensation, one can be said to gain economically even if one accepts no payment for the flight. Sharing expenses is often nothing more than a futile attempt to appear legitimate.

Who arranged the flight? That the pilot has not "held out" means little. If the passenger made the request, the passenger had to have known that the pilot was available. Word of mouth, even when not perpetrated by the pilot, is still holding out. Without considering the issue of advertising or holding out, however, the pilot is still transporting persons or property to a point other than the point of destination for compensation or hire. The pilot is still providing the aircraft. The pilot is providing transportation and pilot services for another,for compensation or hire, to a point other than the point of departure. The flight, as described, at a minimum, requires a Part 135 Operating Certificate.

The FAA has held against pilots on numerous occasions who acted as flight instructor and used that guise to transport a "student" to another location. The administrative law judge hearing the case has held in favor of the FAA when the Administrator can show that the purpose of the flight was transportation, or delivery, or some other purpose than primarily instructional.

Don't play that game. If you want to fly 135, then get qualified. If you don't, stay clear. It will bite you.

 

[JRSLim]

Thanks alot for all your answers people...

Well "student" he's a CFII but does not have a multi rating yet so it's not like I'm endangering pax here.
Still curious if I could have talked my way out of this one......

IMHO taking PAX on any training flight and especially on a Multi-engine training flight is not the best idea, never mind the finances involved. One student paying for one hour of Multi-time is cheaper than four funerals.


Please see Bobby SamDs post: If you're not sure, don't do it.

 

[A Squared]

There's a lot of misinformation in this thread.

This is not true. You *may* transport persons or property for hire if it is in private carriage, and you do not need a 135 or 121 certificate. From the Advisory Circular AC120-12:

"Carriage for hire which does not involve "holding out" is private carriage."


and elswhere in the AC :

Private carriage may be conducted under FAR Parts 125 or 91, Subpart D.



SO, what exactly *is* private carriage? Read the AC, that's about as good an explanation as you're going to get out of the FAA. They do not set hard and fast limits, in part because private carriage vs common carriage is something which is hard to define and it has to be determined by looking at the specific situation and judging it on its individual merits. Throughout the AC the recurring underlying theme is that grey areas will be considered common carriage.

OK, let's say I have a 206, and I enter into an exclusive contract with the operator of a small mine to haul people and supplies to his mine. That's all I do, do crew changes, haul in groceries, supplies, light equipment, and fuel. I haul out ore samples for assay. 4-5 flights a week, month in, month out, That's it. I don't do any flying for anyone else. When I am approached by others to do flying for them, the answer is always and unhesitatingly "no".

That's private carriage. I don't need a 135 certificate.

Now suppose that another mine operator in the area comes to me and asks if I'll set up a similar deal with him. Will that still be private carriage? Maybe. The Advisory Circular states that : "Private carriage 'has been found in cases where three contracts have been the sole basis of the operator's business."

This doesn't mean that if you have 3 or fewer contracts it *is* private carriage, but it means that 2 or 3 contracts isn't *necessarily* common carriage. Again the details of the individual situation will determine if it is private or common carriage.

So, if you add another contract, you may still be engaging in private carriage ... but don't get too greedy. Too many contracts will be considered evidence of a willingness to serve any and all. From the AC:

"A carrier operating pursuant to 18 to 24 contracts has been held to be a common carrier because it held itself out to serve the public generally to the extent of its facilities."

So getting back to the original queston; was the described flight private carriage?

Well, without a bona fide, exclusive contract it's going to be difficult to demonstrate private carriage. note the operative term "bona fide" the faa knows the difference between a real exclusive contract, and a sham contract who's sole purpose is to circumvent the regulations. They will take legal action accordingly. See NTSB decision: administrator vs Nix.

The answer in my opinion is it's a grey area, and the FAA has a propensity to consider grey areas common carriage. The best answer is like several have already said, it's best to avoid the grey areas.

 

[transpac]

There's a lot of misinformation in this thread.

Yep, sure is a lot of misinformation. But, in this post you've got to be $hitting me! This is the kind of bad dope that could cost someone his/her certificate and career.

In the situation you describe, a person contracts for private carriage with a C-206. You say this is legal under Part 91, and that no operating certificate is needed. To the contrary, an operating certificate (but not an air carrier certificate) issued under Part 135 is required in this scenario, along with the associated Part 135 requirements such as training, check rides, maintenance and so on. If an airplane with more than 20 seats is used, then the operation must be conducted under Part 125. Anyone doing this kind of operation in any size airplane under Part 91 is going to get hammered hard if the Feds find out about it.

Before confusing the matter further, why don't you take a peek at Part 119.23(b).

 

[A Squared]

I stand corrected.

I was under the mistaken impression that private carraige was not regulated by 119. You're right that was really bad advice.

The example I gave would be an example of private carriage, but it would not be exempt from the requirements of Part 135.