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Another legal question

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Ok here's another legal question for all the erudite helicopter geeks :P

 

Let's say you're a rated commercial pilot and that a friend wants you to take him up in a chopper so he can propose to his girlfriend.

 

Obviously, he can't pay for the rental of the ship. That's more than his pro-rata share.

 

In fact, he can't even pay for his pro-rata share and his girlfriend's pro-rata share because there is no common goal for the flight.

 

The flight can't be accomplished commercially because it's not an instructional, photo flight, etc.

 

It's not a 91.147 flight because you aren't an employee of the company and aren't on the drug testing program, etc

 

So lets say that you decide, to buy the checkout flight and rental for your friends, but you don't live close by.

 

 

Can your friend buy you a roundtrip airplane ticket? Or could that be construed as compensation or favor??

 

The joys of legal questions...

 

 

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As a commercial pilot none of this is an issue.

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Pro-rata share is specific to private pilots.

91.147 is specific to commercial air tours operated under the exemptions of Part 119(e)(2) (look in Part 110 for the definition of commercial air tours).

 

The question then becomes "does this person need to adhere to the other exemptions of Part 119?"

Edited by ridethisbike

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I understand pro-rata share applies to Private pilot.

 

What I'm getting at is that the flight would fall under private privileges unless it's under the approved guidelines for passenger commercial flights.

An application under 91.147 commercial air tours would not be possible in this circumstance.

 

I don't see a commercial application possible in this situation (where a pilot comes in and rents an aircraft- see original post).

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Its part 91 a ride, as long as you are current that about all the legal requirement, I taken a few friends for a ride over the years, some of you over think this stuff, then again thanks to a bunch who don't know a dam thing gets to make a whole lot of regulatory decisions, like drug testing while yes its a good thing over all, for the most part drug use in aviation never amounted to much, it becomes a cost vs benefit thing- You could also say the same thing about the PRIA, all that did was create a whole lot of paper work and expense for little or no improvement in what they wanted to improve on! But hey like I said most of the regulatory stuff we have to put up with and you almost have to be a lawyer to figure it out, its politically driven by grandstanding politicians . Now the owner of the Helicopter might have issue with you and an unknown quantity that is about the only thing I can really think of that might put the breaks on you!

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Part 91...take em up and charge him. No shares, no splitting costs, nada. Within what 25 miles, over that if you drop them off it'll be a 135 deal.

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Forgive me if I'm being incredibly dense, but how is this a permissible flight under part 91 if the person requesting the flight paid for the rental (rather than the pilot)?

 

It's not an instructional flight, photo flight, or survey flight or any of the other exceptions for being compensated for flights.

 

Yes, it could fall under a scenic tour under 25 mi, however the guidelines have changed (91.147) and now a LOA and drug program are required for those flights:

 

http://www.aopa.org/Advocacy/Regulatory-,-a-,-Certification-Policy/Regulatory-Brief-Commercial-Air-Tour-Charity-and-Sightseeing-Rule

 

If one was to fly down and rent an aircraft they would not be on the drug program.

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What I'm getting at is that the flight would fall under private privileges unless it's under the approved guidelines for passenger commercial flights.

An application under 91.147 commercial air tours would not be possible in this circumstance.

 

I don't see a commercial application possible in this situation (where a pilot comes in and rents an aircraft- see original post).

 

No, it doesn't fall under private pilot privileges if he's a commercial pilot. As a commercial pilot, the restrictions of 14 CFR 61.117( c ) do not apply, regardless of the type of operation.

 

14 CFR 61.117( c ) (pro-rata share) is applicable to the private pilot certificate, not to the commercial pilot certificate.

Edited by avbug

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Three personal observations that may be helpful...

1. Any exchange of flight without common purpose for anything value including non tangibles such as flight time and "goodwill" is flying for compensation.

 

2. IMHO this is a FAR PART 91 common purpose flight between friends without holding out as common carriage and as such the direct operating expenses rental,fuel, oil,landing fee etc maybe shared prorata 33.3% each aircraft occupant. Pilot may pay more than his share but never less.

 

2. Commercial pilots may exercise private pilot privileges such as pro-rata expense sharing, more on this from AOPA Legal..

"Another question that is frequently asked is: If a private pilot may share expenses, what about the holder of a commercial pilot or an airline transport pilot certificate? The question comes up because the regulation that we quoted earlier talks in terms of a "private pilot." A commercial pilot or ATP may exercise the privileges of a private pilot, including the shared-expense privilege."

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Forgive me if I'm being incredibly dense, but how is this a permissible flight under part 91 if the person requesting the flight paid for the rental (rather than the pilot)?

 

It's not an instructional flight, photo flight, or survey flight or any of the other exceptions for being compensated for flights.

 

 

 

 

If one was to fly down and rent an aircraft they would not be on the drug program.

 

It doesn't need to fall under an "exception for being compensated for flights," because the pilot is not a private pilot.

 

A commercial pilot is allowed to be compensated for his flying.

 

If the person requesting the flight pays for the rental (rents the aircraft), the pilot becomes nothing more than a corporate pilot, flying for someone who has provided an aircraft.

 

If the pilot rents the aircraft, however, and provides it, he enters into murky waters. The legality is decided on a case by case basis, as often stated by the FAA Chief Legal Counsel.

 

Three personal observations that may be helpful...

1. Any exchange of flight without common purpose for anything value including non tangibles such as flight time and "goodwill" is flying for compensation.

 

2. IMHO this is a FAR PART 91 common purpose flight between friends without holding out as common carriage and as such the direct operating expenses rental,fuel, oil,landing fee etc maybe shared prorata 33.3% each aircraft occupant. Pilot may pay more than his share but never less.

 

2. Commercial pilots may exercise private pilot privileges such as pro-rata expense sharing, more on this from AOPA Legal..

"Another question that is frequently asked is: If a private pilot may share expenses, what about the holder of a commercial pilot or an airline transport pilot certificate? The question comes up because the regulation that we quoted earlier talks in terms of a "private pilot." A commercial pilot or ATP may exercise the privileges of a private pilot, including the shared-expense privilege."

 

 

Of course a commercial or ATP pilot may share expenses. He does not need to share expenses. Expense sharing is irrelevant. He's allowed to be compensated for the flying, and may fly for compensation or hire.

 

A private pilot, when reimbursed, may not pay less than the pro rata share of the operating expenses. This is not true for a commercial pilot, who does not need to pay the pro rata share.

 

If the passenger is moved to a point other than the point of departure and the flight does not have a common purpose (eg, the pilot wasn't going there anyway), and the pilot has provided the aircraft (owned, rented, whatever), the flight will fall under 119 and require an operating certificate (eg, 135).

 

Holding out for transport is not necessary to incur a violation of the regulation.

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Avbug posted this..

 

No, it doesn't fall under private pilot privileges if he's a commercial pilot. As a commercial pilot, the restrictions of 14 CFR 61.117( c ) do not apply, regardless of the type of operation. 14 CFR 61.117( c ) (pro-rata share) is applicable to the private pilot certificate, not to the commercial pilot certificate.

 

Then posted this...

 

Of course a commercial or ATP pilot may share expenses.

 

Thanks for correcting your error. As an ATP I may want to exercise my 14 CFR 61.117( c ) privileges if, for example, my first class medical has lapsed to a third class. So it certainly applies to Commercial and higher Airman certificates in specific circumstances, and there are operations where it is most appropriate from a regulatory perspective.

 

Those looking for a comprehensive review of the compensation topic may find the following of interest...

 

http://www.nbaa.org/events/amc/2011/news/presentations/1011-Tue/NBAA2011-1011-1030-Reimbusement-FARs.pdf

 

http://www.faa.gov/news/safety_briefing/2010/media/SepOct2010-ComeFlyWithMe.pdf

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Avbug posted this..

 

Then posted this...

 

 

Thanks for correcting your error. As an ATP I may want to exercise my 14 CFR 61.117( c ) privileges if, for example, my first class medical has lapsed to a third class. So it certainly applies to Commercial and higher Airman certificates in specific circumstances, and there are operations where it is most appropriate from a regulatory perspective.

 

Those looking for a comprehensive review of the compensation topic may find the following of interest...

 

http://www.nbaa.org/events/amc/2011/news/presentations/1011-Tue/NBAA2011-1011-1030-Reimbusement-FARs.pdf

 

http://www.faa.gov/news/safety_briefing/2010/media/SepOct2010-ComeFlyWithMe.pdf

 

I didn't make an error. The original poster did.

 

An ATP does not need to share pro rata expenses. He or she may. He or she has no need.

 

As an ATP, you do not have 61.117 privileges. The pro rata provision of 61.117 is a restriction or limitation, not a privilege. Specifically, the a private pilot MUST pay his or her pro rata share. He or she may not be compensated for flying, save within a narrowly defined range. The FAA has determined that even the logging of flight time is considered compensation with regard to 61.117, and has stated this on numerous occasions in legal interpretations by the FAA Chief Legal Counsel's office.

 

A first class medical does not lapse to a third class. After 6 months, the privileges allowed under a first class are reduced to those accorded a second class, but the medical remains a first class medical certificate. It does not change.

 

If you do not hold medical privilege for your level of pilot certification (eg, first class for ATP, second class for commercial, etc), then you are limited to the pilot privileges corresponding to time after the month in which the certificate was issued. The holder of a higher pilot certificate always has privileges for lower levels of certification, limited to category and class held. Obviously if you don't hold medical certification, you can't exercise the privileges, any more than you can act as PIC carrying passengers without flight currency, or without meeting the requirements of night, instrument, flight review, etc, as stipulated by the regulation.

 

The original poster did not stipulate loss of medical, and in the context of the question he posted (and to which I responded), as a commercial pilot one may be reimbursed and paid for the flight. The commercial pilot is not limited to a requirement to pay a pro rata share of the flight. The original poster suggested that the pilot should provide the aircraft, when the opposite is true; the pilot who provides the aircraft and is reimbursed for the same is in a different legal situation than one in which the passengers have provided the aircraft and the pilot is being paid strictly for pilot services.

 

The original poster asked if a round trip ticket or airfare can be purchased for a pilot, and the answer is yes, it can.

 

The way in which a flight is conducted has everything to do with the legality, and consequently each is determined on a case by case basis, as oft stated by the FAA Chief Legal Counsel.

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Guest pokey

it appears to me, that the original poster has again asked the wrong question, which in my book constitutes a wrong answer,,,, :unsure:

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I don't see a commercial application possible in this situation (where a pilot comes in and rents an aircraft- see original post).

 

Go the opposite way and have your friend rent or lease the aircraft for his private usage and pay you for your services as pilot. If you rent or lease you take on “Operational Control” and it would be unclear wither or not you were engaged as a commercial operator in air commerce.

 

§1.1 Operational control, with respect to a flight, means the exercise of authority over initiating, conducting or terminating a flight.

 

§1.1 Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in §91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise).

 

§119.1 Applicability.

(a) This part applies to each person operating or intending to operate civil aircraft—

(1) As an air carrier or commercial operator, or both, in air commerce; or…

 

 

Can a commercially certificated pilot fly a friend for full compensation or hire under Part 91? The answer is that there are some limited circumstances when it is permissible. From the standpoint of Part 61, the holder of a commercial pilot certificate is permitted to accept compensation for piloting. There is a question, however, whether the operation can be conducted under Part 91 as opposed to Part 135.

 

In general, when a flight involves the carriage of persons or property for compensation or hire, the operator must hold a part 119 air carrier or commercial operator certificate and operate such flights under part 135 rules. However, part 119 provides certain exceptions for several categories of operations involving the use of an aircraft for compensation or hire, such as aerial work operations, and those operations are excluded from the certification requirements of part 119.

 

Another example of a Part 91 operation is a commercial pilot flying a privately owned or “operated” aircraft carrying family, friends, or business associates of the owner or “operator”. The owner or “operator” pays the commercial pilot and all aircraft cost. As long as there is no carriage in air commerce of persons or property for compensation or hire (family, friends, or business associates are not charged for the flight), the flight can be conducted under Part 91 and the pilot paid for his services.

 

The same is true for the round trip ticket or airfare for the pilot. If travel to get to and from the aircraft is needed or an aircraft check ride was required for rental, lease, or insurance that would also be covered by the owner or “operator.

 

Also have him sign the following agreement:

 

It is hereby our mutual understanding and agreement, between Pilot4him and Tom Parks, that I, Pilot4him, am employed as an agent for pilot services only, for Guest Flights, for Tom Parks. As such, Tom Parks acknowledges that he has “Operational Control” for all Guest Flights and will be held accountable for the acts and omissions of his agent, Pilot4him, in the operations of the Guest Flights.

 

Signed:

 

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

Tom Parks

 

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

Pilot4him

 

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

Witness

 

As stated in Avbug post:

 

The way in which a flight is conducted has everything to do with the legality, and consequently each is determined on a case-by-case basis, as oft stated by the FAA Chief Legal Counsel.

 

REF: Legal interpretation - Who has "Operational Control”?

Edited by iChris
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