the fine line between 91 and 135

[av8rbama]

I've done some searching and if there are similar threads, please point the way...

A pilot gets a call from a local FBO this morning to fly the FBO owner's 210 this afternoon to pick up a dog 200 miles away. However, the FBO lady says the dog belongs to a lawyer who on occasion uses the 210 for personal use and this is a 91 flight (before the pilot could question her). The 210 is also on the rental line (albeit at $250/hr ).

The pilot assumes the owner is doing a favor for the lawyer and not charging him since this is a 91 flight. However, how would the pilot know for sure?

The 210 is registered in the owner's name, not the name of the FBO. It is unknown whether the aircraft is currently on a 135 certificate. The pilot originally was placed on the insurance to fly the owner to his various vacation homes on the weekend and train the few-and-far between pilots who might come in to rent the aircraft, along with other various trips the owner might take during the week.

Is this flight 91 or 135? Even if the lawyer isn't paying for the flight and it is a favor of the owner (who will not be on the flight), is it still 91? Even if the FBO lady says no money will change hands and says it's a 91 flight but money or services really are being exchanged for this trip, would the pilot still be in violation of the FARs?

It just seems like a fine line to walk to me.

BTW, the pilot isn't making the trip, his wife already has something planned ...

 

[FN FAL]

Would the pilot be an employee of the FBO?

 

[av8rbama]

No tax forms have ever been signed, so no. That was going to be the pilot's first flight for the FBO, he's not had any calls to take the owner to the beach since the owner got a Citation unless that was going to be taken care of today. The flight instruction is freelance.

Does this matter?

 

[FN FAL]

No tax forms have ever been signed, so no. That was going to be the pilot's first flight for the FBO, he's not had any calls to take the owner to the beach since the owner got a Citation unless that was going to be taken care of today. The flight instruction is freelance.

Does this matter?

If the owner of the plane has retained you to be his personal 'driving miss daisy' commercial pilot and you are smart and have a contractual agreement stating such, you can be sent at his or her whim to do things for him. Like go pick up his/her friends with the plane. If the owner of the plane, the guy that contracted you to be his pilot services commercial pilot, has charged that friend for the service of using the plane or you...then he's the one that is holding out.

 

[av8rbama]

If the owner of the plane has retained you to be his personal 'driving miss daisy' commercial pilot and you are smart and have a contractual agreement stating such, you can be sent at his or her whim to do things for him. Like go pick up his/her friends with the plane. If the owner of the plane, the guy that contracted you to be his pilot services commercial pilot, has charged that friend for the service of using the plane or you...then he's the one that is holding out.

Thanks for the help. Are there any resources out there for a quick & dirty contractual agreement for this type of contract flying?

 

[FN FAL]

Thanks for the help. Are there any resources out there for a quick & dirty contractual agreement for this type of contract flying?

It's words on a piece of paper and two signatures.

But I wouldn't go running off yet. Didn't you say that the FBO owner was the owner of the plane? This is that part that would scare me.

 

[av8rbama]

Ain't gonna do it...

And after what happened today, I'm leery of flying for him if he calls again. I guess it's a good thing I've got another full-time job.

 

[mcjohn]

Mmmnn, 1st beer of the night.

Hey, how bout this, CFI takes his student (along with the student's wife and two kids) to an island in the bahamas and stays there with the student's family for a weekend. The plane was rented from the flight school by the student. The FAA showed up because some one told them about the trip being an illegal charter. We'll when the CFI was questioned by the FAA he simply pulled out his log book and showed the dual given and had the student acount for the same logbook entries.
What's deal with that?

 

[av8rbama]

Hey, how bout this, CFI takes his student (along with the student's wife and two kids) to an island in the bahamas and stays there with the student's family for a weekend. The plane was rented from the flight school by the student. The FAA showed up because some one told them about the trip being an illegal charter. We'll when the CFI was questioned by the FAA he simply pulled out his log book and showed the dual given and had the student acount for the same logbook entries.
What's deal with that?

Are you saying the dog should be my student? I bet he'd be heck on wheels at s-turns and begging.

 

[avbug]

Not enough information has been provided to answer the question posed by the original poster.

The freelance instructor has been requested to take a flight to pick up the dog of someone who occasionally rents the aircraft involved. We need to know if the lawyer (dog owner) is renting the aircraft, or if the aircraft is being provided by the FBO (for whom the instructor will be working). We need to know if the FBO is accepting compensation for the trip. If the trip is done gratis by the FBO, and the FBO fronts all the costs, and obtains nothing in favor, trade, or any other form of compensation from the attorney or the dog...and if the pilot flies in the employ of the FBO, and the FBO has provided both the aircraft and the pilot, it *MAY* not be an illegal charter.

If the attorney has provided the aircraft and hires the instructor/pilot to fly the dog, then the flight may be conducted as a Part 91-only owner flight, just as any other corporate trip...so long as the owner doesn't receive compensation from the dog.

The issue of holding out is irrelevant.

Too little information has been provided to address an answer; the matter must be more fully detailed, first.

To the second suggestion by McJohn, the FAA has successfully prosecuted enforcement action against pilots conducting illegal charters in the guise of instruction on many occasions. Merely because the student shows a logbook entry and the instructor has logged instruction given, doesn't make the flight legitimate. Again, not enough information is provided, but pilots have often found out too late that such flights, thinly disguised as instruction, can and do result in enforcement action and certificate action to include suspensions and even fines.

 

[mcjohn]

I could see the foul play if the student didn't have a log book full of nothing but his instructor's sign offs. But if the only thing in the guys logbook were signoffs from that instructor then he really was his student and probably learned a lot from this long X-C ya know. The CFI who was questioned was kind of bragging about going to the Bahamas and having such a good time and all. He also said that I should strive to get students that are so awesome so I could go play like that. I kind of thought he sounded like an idiot and thought he might be pushing the rules.

 

[av8rbama]

The amount of info provided initially is all that was given to the pilot when asked to make a quick decision to take the trip.

The #1 tip that it might be fishy was that the FBO lady insisted without being asked that it was a 91 trip. Even without her insisting it was 91, there were just a few too many caveats involved.

You say it "may" not be an illegal charter if the FBO receives no compensation from the dog owner, but how is the pilot to know that other than to take her word for it?

Let me ask this... you say if the dog owner provides the aircraft (even through rental) and hires the pilot on his own it's 91 unless the dog owner receives compensation for the dog? I can see building the case for 91 if he was picking his dog up from a family member who'd been dogsitting, but it seems skiddish if he's just bought this dog and the pilot is making the delivery. How would the latter not be 135?

Not to mention, the pilot's company flies out of the other local FBO and hasn't built any sort of reputation with the FBO in question... it would be easier if the pilot knew and trusted the people requesting his services.

In the end, the pilot did some quick research on the situation at hand, searching the net, posting questions on forums, and contacting a good friend of his who is a DPE to seek his advice. The DPE has flown 135, was a captain for a major, and now flies 91 corporate and once got his hand slapped for a similar incident.

I'm not ignorant of the rules, it's that they are so difficult to understand and there is a caveat at every turn.

 

[avbug]

There's no caveat at every turn. It's very simple. Who has operational control of this operation?

If you fly persons or property for compensation from one point to another, and those persons do not own or provide the aircraft, you are in jeopardy.

Is the instructor being paid to flying this dog from A to B? Paid by whom? Who provides the aircraft? Who is paying for the flight?

If the pilot doesn't know the details, the pilot is still responsible. If the pilot violates the regulation, the pilot is responsible. This is the nature of being pilot in command. You always share in operational control of the flight because you make the final decision to conduct the flight (if you refuse the flight, it doesn't go), and therefore you always share in the responsibility if it's an illegal operation.

Option A: the FBO owns the aircraft. The FBO pays the pilot to fly. The attorney pays the FBO to fly the dog from A to B. This operation should be conducted under 135. The fact that the owner occasionally rents the aircraft is irrelevant.

Option B: the FBO owns the aircraft. The FBO pays the pilot to fly. The attorney pays the FBO nothing to fly the dog from A to B. If the FBO receives more future business from the attorney, legal counsel in trade, good will, or any other form of compensation, this may be a 135 operation. The fact tha the owner occasionally rents the aircraft is irrelevant.

Option C: the FBO owns the aircraft, and the attorney rents the aircraft. The FBO pays the pilot to fly, or provides the pilot with the aircraft as part of the rental, while flying the dog from A to B. Again, the aircraft and pilot have been provided by the FBO, and the attorney is paying...this operation should be conducted under 135. The fact that the owner occasionally rents the aircraft is irrelevant.

Option D: The FBO owns the aircraft, and the attorney rents the aircraft. The attorney privately contracts with the pilot to fly the aircraft he has rented, to fly is dog from A to B. In this case, the operational control of the flight is entirely in the hands of the attorney (as shared by the PIC), and he has provided the aircraft and the pilot. This is a private operation. The fact that the owner occasionally rents the aircraft is irrelevant.

Option E: the FBO owns the aircraft, and the attorney rents the aircraft. The attorney privately contracts with the pilot to fly the aircraft he has rented, to fly his dog from A to B. The dog pays for the flight. This flight should be conducted under Part 135, as the dog has now become a paying passenger. If the owner doesn't charge the dog for the flight, you're in good shape. The fact that the owner occasionally rents the aircraft is irrelevant.

How are you to know if the owner is compensating your boss at the FBO? You are to know because it's your business to know. Ask, find out, learn the details or pay the price if you elect to undertake an illegal operation in ignorance. How are you to know that AD's have been performed, that the aircraft is within it's appropriate inspection interval, and that all other aspects of the required legality and airworthiness of the aircraft have been met? It's your duty to know. It's the reason you are allowed to live and draw breath on this planet, for the time you're acting as PIC; it's your sacred responsibility...if you don't know then WHAT ON EARTH ARE YOU DOING ACTING AS PIC??????????

You'll note that a common thread among the various scenarios given above is the fact that the attorney (who owns the dog) occasionally rents the aircraft...is irrelevant.

You are performing a flight for a third party. That alone should send up a red flag. The fact that you are transporting persons or property between two points, and that you are doing it for compensation or hire, should send up a red flag. The fact that your boss tells you it's a "part 91 flight" (all flights are Part 91, by the way) should not...it's up to you to determine the regulation under which the flight is conducted because YOU'RE THE PILOT IN COMMAND!!!.

Notice I said send up a red flag...I didn't say these things make the flight illegal. However, they should alert you to the possibility of an illegal operation, and you should use caution. Do you have a common purpose with the dog or the attorney in moving the dog? Another red flag.

If your boss owns the aircraft and pays for the flight, and is doing a favor for a friend, and hires you to fly the airplane, it's no different than being hired to fly a corporate airplane. A corporate airplane may fly a client or a client's dog without fear, if the corporation pays the cost of the flight, and doesn't reap benifits from the flight. If the corporation, or in this case the FBO benifits directly or indirectly, then the flight becomes compensated, and must be conducted under Part 135.

Let me ask this... you say if the dog owner provides the aircraft (even through rental) and hires the pilot on his own it's 91 unless the dog owner receives compensation for the dog? I can see building the case for 91 if he was picking his dog up from a family member who'd been dogsitting, but it seems skiddish if he's just bought this dog and the pilot is making the delivery. How would the latter not be 135?

W(h)eather the attorney just bought the dog, or previously owned it, is irrelevant. It serves only the cloud the issue, as does the prior rental history of the owner.

 

[mcjohn]

Avbug go to law school? He should. That just confused the shizzle out of me but I favor avbug on the issue.

 

[avbug]

McJohn,

According to your bio, you don't have enough experience to fly Part 135 yet...so you shouldn't be expected to know 135 regulation. There's a lot of unfamiliar material to cover...and you needn't worry about it right now.

All you need to concern yourself with on these matters is the simple question about flying for compensation or hire. The test is easy. Are persons or is property being carried for compensation or hire between two points? If yes, then go to step B. Is any of that compensation coming from anyone other than the owner/operator of the aircraft? If yes, then stop right there and turn it over to a 135 operation.

Yes, there's more to the story, but avoiding even the very appearance of evil...it's a good time to stop and back away. No need to delve into regulation issues...enough red flags to make your decision easy. Avoid areas where your integrity or intent might be called into question, and if it's ever in question by you...then you're already in trouble.

Think of it this way. If there's ever any doubt in your mind about any aspect of the flight, then you should NOT be making it. This applies to all flights, and all aspects of all flights that you'll be making in your lifetime. It's a basic tenet of the minimum practical standards for any certificate or rating, that the successful outcome never be seriously in doubt. Apply that to all your flying and all your decision making, and you can't go far wrong.

 

[mcjohn]

I think its O.K. to be a little paranoid embarking on some flights when it comes to weather etc.. but regs. yeah I guess that's not worth it. I don't like breaking black and white rules that show your character if caught. But before my personal limits are exceeded I've been a little gripped and thought "I can't believe I'm doing this." Like climbing out in snow with my wife on board from an airport with no appoaches. That stuff gets me a little gripped.

 

[avbug]

What does it mean to "get gripped?"

 

[mcjohn]

What does it mean to "get gripped?"

It really means to grip something tightly when you're a little scared or paraniod etc... I'm not using it correctly 'cause I never grip the yoke tighly but I'm sure you get the point.
My buddy and I would always say we were "gripped" running class V+ waterfalls in our creek boats and that was using it correctly. The shaft to the kayak paddle is what we were gripping for dear life.

Do I get a top gun "Your dangerous!" I actually was foolish and extrememly dangerous in my boating days and now my shoulders are fried as a consequence. I try hard to not let that nature I used to have cross into aviation.

 

[av8rbama]

Avbug, thanks for your great breakdown of the issue. In commercial training, you hear so much about "common carriage" and "holding out" but for myself, being inexperienced in 135 ops at this point, all I could see was red flags. Sure I've read the regs, taken the commercial written/practical, but you really never understand until you get into that type of operation or have someone explain it to you as you have done here.

I never thought the fact the lawyer rented the plane was relevant and could not figure out for the life of me why this was even brought up in the first place. It was as if I were being talked into doing something. I, for one, don't appreciate that. Then when she said it was a 91 op before I could even question the issue was a red flag.

I am not employed by these people, this is strictly on a freelance basis and honestly, I don't need any more 210 time... 700 hours and counting. The only thing I stand to lose with these folks is few hours of dual in their Citation, and there's NO time in ANY airplane that's worth me risking my ticket like that...

 

[TurboS7]

There is no fine line, if you get paid for it it is Part 135. The FAA just doesn't have time to chase everyone. Really it is more like if you are Part 135 then you are a liability to the government so they have to make sure you have your act together. When you are doing illegal Part 135 they could care less.

 

[FN FAL]

There is no fine line, if you get paid for it it is Part 135. The FAA just doesn't have time to chase everyone. Really it is more like if you are Part 135 then you are a liability to the government so they have to make sure you have your act together. When you are doing illegal Part 135 they could care less.

From what I heard, they just nailed a father son combo in the manitowoc/sheboygan area, a few months ago.

 

[avbug]

For a government agency that could care less, the FAA spends a lot of time and effort pursuing and enforcing violations of Part 119 and 135. Most absolutely the FAA could and does care, and does take enforcement action against violators whenever possible.

Ironically, the most common source of the FAA finding out about these indescretions is competitors who are paying the hefty insurance and expense involved with keeping an active, clean 135 certificate. Illegal charter isn't uncommon, nor is FAA enforcement action for the same. Imagine the legitimate certificate holder who shells out cash and credit hand and foot to stay in business, and then learns of others performing illegal charter. Think that legitimate operator won't turn you in? Think again.

 

[mcjohn]

You're darned tootin! My post way back told of a situation where the FAA showed up to a tiny little flight school to question the CFI about the trip to the Bahamas. The folks that told were the competitors who had a legit 135 operation out of the same building. Sounds like you're just rationalizing your illegal situation.

 

[av8rbama]

I just got another call from this same FBO to do another 134 1/2 operation... this time it was the line guy making the call. I asked him who would be paying me to fly and he said "we will." Red flag again... I had another great out, there is no way I could make the trip. I'm thinking of stopping by one day next week and share my concerns with the people running the show over there and explain to them that I'm just trying to protect myself and my career in aviation.

Avbug (or anyone else), I understand from your comprehensive list of scenarios that if the person in need of the pilot services rents the airplane and that person contacts me and pays me himself and no one else is paying him for a seat or some sort of cargo to be delivered it is a private operation, the responsibility is shared between myself and the person requiring my services. It is black and white. However, what is the consequence of that person calling me because my name is on a list of available 210 instructors at said FBO? I'm not sure where this falls under the notion of "holding out."

 

[FN FAL]

However, what is the consequence of that person calling me because my name is on a list of available 210 instructors at said FBO? I'm not sure where this falls under the notion of "holding out."

That's the problem. At the very least, the FBO could be accused of holding out because they use you as a CFI and they rent planes to the customer. They are providing both plane and pilot.

Lets look at a different scenario...

Some guy advertises renting and leasing of a 300 series Cessna. He meets all requirements for renting out the plane.

Your advertisement for pilot services is right next to this ad and you list among other things, your qualifications for flying, which include 500 PIC in 300 series Cessna's.

If a guy calls up the renter and purchases ten hours of block time in the 300 series Cessna and then calls you up and wants you to fly the rented plane all over the place, can any of these acts be construed as holding out to the public?

What if you and the guy are roommates? What if you and the guy are married? Do any of these behind the scenes "situations" change anything in regards to holding out?

 

[mcjohn]

Just get AOPA Commercial Pilot legal services for $52 a year and rest easy. I've heard really good things about their legal service program. Sounds like there is enough gray in the situation to do it without too much fear or guilt (especially if you have AOPA's lawyers on your side) I bet those guys would LOVE defending you against the FAA in a situation such as this. Also, if you pay into it you can just call and ask them instead of taking chances with all the pilots opinions on this forum. I have learned that info on this forum should be taken with a grain of salt ya know?

 

[FN FAL]

Just get AOPA Commercial Pilot legal services for $52 a year and rest easy.... I have learned that info on this forum should be taken with a grain of salt ya know?

You're contradicting yourself.

 

[av8rbama]

You're contradicting yourself.

Haha, too funny.

Yeah, I've got the AOPA legal services plan. I've had it ever since I first joined AOPA but thankfully have never needed it.

However, when you dig yourself into a hole involving gross neglegence of black-and-white regulations, even the best of lawyers have a tough time getting you out of it (except for Jackie Chiles "Of course a bra's not going to fit over a leotard" :laugh: ). You can't just buy a legal services plan and expect them to have your back no matter what you do.

Gotta quit thinking about this today, my wife has already told me to quit worrying about it... too many scenarios, my head is about to explode.

 

[FN FAL]

Haha, too funny.

Yeah, I've got the AOPA legal services plan. I've had it ever since I first joined AOPA but thankfully have never needed it.

However, when you dig yourself into a hole involving gross neglegence of black-and-white regulations, even the best of lawyers have a tough time getting you out of it (except for Jackie Chiles "Of course a bra's not going to fit over a leotard" :laugh: ). You can't just buy a legal services plan and expect them to have your back no matter what you do.

Gotta quit thinking about this today, my wife has already told me to quit worrying about it... too many scenarios, my head is about to explode.

Yea, it is kind of a dilemma. You need flight time to get up in the world, but yet you must stay on the up and up to keep your record un blemished.

I did a lot of flying with my own plane and a rented plane for my employer. They re-embursed me for the time on my plane and my employer paid the bill on the rental plane. The company I worked for built specialty machinery for the paper industry, so we did a lot of field service and sales trips. Since the flying was incidental to business, I was able to draw company pay while flying the aircraft. I was working there as a field service tech and machine assembler...so it was real convenient for them and me to be able to do this type of flying.

 

[mcjohn]

Good point, that was a little contradicting.

BTW, I keep meaning to put up a resume on those local job websites kind of hoping to do something part time that might allow me to fly a little for the job. Any advice on a niche I should look into FN FAL. My only sales experience is lawn and garden/plumbing at Sears. My only technical experience is audio engineering (which I'm not into anymore) and flying.