Private carriage or Common carriage?

[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.

 

[kclark]

These issues have very little to do with ‘holding out’, ‘private carriage’, ect. Below are some scenarios.



Basically a commercial pilot can fly for compensation for hire for an air carrier (part 121 or 135) or be a corporate pilot operating under part 91.



What else can they do? Not very much - See 119.1 (3) (1)-(10) for a list.



Scenario 1

n Joe Pilot owns a Cessna 172. Joe is a commercial pilot. Joe’s friend approaches him and asks if Joe will fly him to MSP in the 172. Joe’s friend will cover all of the expenses and pay Joe $200.00 for his trouble. Can Joe legally make the flight?

n NO!!

n Why?

n Joe is a commercial pilot and can fly for compensation or hire. However, he does not hold an air carrier (135) certificate and cannot operate in air transportation without one.

n What if Joe’s friend will only pay the direct operating expenses of the flight, is it legal then?

n NO!!

n Joe must pay his pro rata share.

n What if Joe pays a pro rata share, is it legal then?

n Only if Joe is going to MSP for a common purpose.

n If Joe has no common reason for making the trip, he is engaging in an illegal charter as he is getting flight time (compensation) at a reduced cost and is only transporting his friend for the friend’s reasons.





Scenario 2

n Joe’s friend Randy calls Joe late one evening with a request. Randy’s father is very ill and needs dialysis. Randy asks if Joe will fly him to MSP that evening so that he can get medical care. Randy offers to pay for the fuel.

n Joe had planned to fly the plane to MSP in a week to have some radio work done. He decides to transport Randy’s father to MSP and then have the radio work done the next day.

n Legal??

n NO!!, no common purpose, no pro rata share



Scenario 3

n Joe and two friends plan to fly to MSP for the game. Joe’s friends offer to pay for all of the gas since Joe is flying.

n Legal?

n NO!! Joe must pay his pro rata share (1/3).



Scenario 4



n A 370 hour CFI was directed by his boss (an owner of a flight school) to transport the local chief of police to a nearby town where his wife was in the hospital after a car accident.

n The CFI was told that the chief was interested in flight lessons and to give him a demo flight to the nearby town and then return.

n Legal?

n NO!! The CFI did not understand the applicability of pt. 135 and was sure the flight was conducted under pt. 91.

n The FAA felt otherwise and suspended his certificates for 90 days (later reduced on appeal to 30 days).

n The flight school held a 135 cert. and was fined by FAA in a civil penalty action.





These Scenarios were made by an FAA Attorney and a AOPA attorney.

 

[transpac]

I stand corrected.

You're usually spot-on in your posts, so I was taken aback at the one above.

Thanks for your correction.

 

[Tired Soul]

Ok first of all thanks for all the replies.

Now "flightinstruction" did not mean pulling engines with passengers.
It means he is not rated in the airplane. I'm not that stupid.
Now to avoid any papertrail I put the invoice in my name....
I am convinced however that this flight was not the brightest idea but then again. Nothing I can do about it now.
If I set up a contract with these people (exclusive) am I in the clear?
They may or may not return but does anybody have a sample contract I could use?

 

[pilot_guy]

How about this scenario?

Here's my question:

A private pilot wants to build flight time. He has access to a 150 for 60 an hour. I want to shoot aerial photography (for my clients) and need someone to fly me around (though I hold CSEL)

We agree to split the cost of the 150 for 30 bucks an hour each. He does all the flying, and doesn't get paid. He's paying his pro-rata share. We're both getting what we want, and it's only to allow me to shoot pictures without having to fly the plane and shoot at the same time, and saves me 30 an hour on an airplane.

Question is: Legal or not?

 

[transpac]

Here's my question:

A private pilot wants to build flight time. He has access to a 150 for 60 an hour. I want to shoot aerial photography (for my clients) and need someone to fly me around (though I hold CSEL)

We agree to split the cost of the 150 for 30 bucks an hour each. He does all the flying, and doesn't get paid. He's paying his pro-rata share. We're both getting what we want, and it's only to allow me to shoot pictures without having to fly the plane and shoot at the same time, and saves me 30 an hour on an airplane.

Question is: Legal or not?

Sounds legal to me. It would probably be legal without him paying a pro-rata share.

 

[Weasil]

The private pilot is not allowed to share the cost of the flying with you because he is not on board the aircraft for the same reason as you. Your purpose is to take photos... his purpose is to build flight time. This is the same reason a private pilot is not allowed to drop skydivers, even if he isn't getting paid for it.

 

[pilot_guy]

ahhhh, oh well, ain't hurting anyone...

well, I think this is gonna be one of those, "what they don't know won't hurt them" type of deals.

Difference between a guy flying jumpers for free and this, is that he's getting "Paid" in flight time dropping meat bombs. He's not getting anything free here, just renting the airplane for his pro rata share. Actually, I can shoot an approach, or track a VOR under the hood for a little bit every flight and then we solved the problem...splitting time as a "safety" pilot.

Anyway, wasn't trying to be arguementative, just wanted some different views. Legal or not, I'm gonna do it anyway, cause it solves both of our problems. Kid wants to keep flying and build time towards his commercial, but doesn't really have the money, and I want to shoot pictures without getting a**raped every flight in rental fees. I was curious to know what others thought of it.

 

[transpac]

The private pilot is not allowed to share the cost of the flying with you because he is not on board the aircraft for the same reason as you. Your purpose is to take photos... his purpose is to build flight time. This is the same reason a private pilot is not allowed to drop skydivers, even if he isn't getting paid for it.

Which FAR requires the pilot and the passenger to be on board for the same purpose?

A private pilot certainly can fly a jump plane, just not one that's in a commercial operation. For example, if an owner wishes to jump from his own airplane there's no FAR that prevents a Private Pilot from flying it. Obviously in this case the owner and the pilot have different reasons for being in the airplane.

 

[A Squared]

Which FAR requires the pilot and the passenger to be on board for the same purpose?.

It's not explicitly specified in a regulation. The common purpose requirement comes from a chief counsel interpretation which was issued to clarify the intent and limits on the "sharing costs" clause in the regulations.

A private pilot certainly can fly a jump plane, just not one that's in a commercial operation.

well, strictly speaking, no he may not. Again this comes from a chief counsel interpretation. This is the interpretation which established the concept of "flight time as compensation" The interpretation was issued regarding a private pilot flying a tow plane (for free) for a (non-commercial) gliding club, but the same concept would be applicable to flying jumpers. The interpretation concluded that the only way it would be legal is if the pilot did not log the time in his logbook. It should be noted that since the interpretation was issued, the regulations have been ammended to specifically allow a PPL glider tow pilot to log the time. However the regulations contains no such allowance for flying jumpers or other similar flying which is analogous, so the interpretation would still be applicable to this type of flying.

I'm away from my home computer at the moment, so I don't have access to thoe interpretations. I'll post them when I get a chance. Hopefully this will prove to be more accurate advice than my last contribution to this thread <g>

 

[midlifeflyer]

Which FAR requires the pilot and the passenger to be on board for the same purpose?

The "common purpose" doctrine isn't written directly in the FAR. But it has been in existence and used in FAA legal interpretations and enforcement proceedings for a long time.

Head over to the fifth post in this thread for more info:

http://forums.flightinfo.com/showpost.php?p=374547&postcount=5