Legal implications should an accident happen

[allthecoolnamesarego]

Hello all,

I was hoping to get some information regarding the following points.

a. Is it legal to take a passenger for a flight, if that passenger bid for the flight as part of a fund raising auction? (money went to school, and the flight was donated, ie paid for completely, by the pilot).

b. What would the legal ramifications be, if during the subsequent flight, something was to happen and the aircraft (hired from a school) was damaged, and or, the passenger was injured?

I would greatly appreciated any assistance, including perhaps contact details for someone at CASA with whom I could speak to.

Cheers

Coolnames

[LexAir]

The issues are complex. If you are concerned about your possible legal liability you should consult a lawyer.
PM me if you wish.

[VH-XXX]

Think back to Christmas day a couple of years back when a 172 hit power-lines through his own stupidity and the pilot subsequently died in the post impact crash and burn.

A local charity had recently raffled a flight with the crash pilot. Makes you wonder if the whole charity thing is a good idea.

For what a basic joy flight in a 172 costs with a reputable operator versus the income from the raffle or auction, why would you bother with the hassle?

You would be better off approaching a reputable charter operator or flying school and asking for mates rates, or even better asking if they would donate the flight.

[Old Akro]

I agree that this is an unnecessarily complex question in Australia.

However, I think the treatment of a hypothetical accident by the insurance company would be completely different than the treatment by CASA. And CASA seem to be treating accidents differently depending on whether it is RAA or VH registered and amateur built vs factory built and the level of news attention.

I start by ringing the aircraft's insurer (probably QBE or Allianz). I guarantee they will be easier to talk with than CASA.

The other factors (in the event of injury) will be the injured person's life, accident or loss of income insurance and potential legal action by that person or his / her estate. This area may be the worst of it.

And of course tripping getting out of the aeroplane and falling on the ground, or tripping on a tie down on the way to the aeroplane opens a whole new can of worms which may involve the flying school or airports public liability insurance.

Heaven help you if you are a bloke, the passenger is a woman and you are perceived to have touched her in the wrong place while helping her in or out of the aeroplane.

Just don't screw up. And if you do have everything in your wife's name.

There is another thread about fundraising. The ATO have made this area very difficult for charities. In simple terms, any money given to a Charity in exchange for goods & services is not tax deductible. Someone paying a charity $10,000 for a 10 min flight with you is not necessarily entitled to a tax deduction.

The good news is that over the years I have donated many flights at charity auctions and not one of them has ever been claimed. So, there's a fair chance that this question will remain hypothetical for you. Typically they are bought by someone for a mate as a joke and after everyone sobers up they lose interest.

[Aviatrix54]

you are too synical by half you must have been in the industry even longer than me!!!:bored::D

[Socket]

If a Non profit organisation organises a flight with an operator and pays for it, it is a charter.

[Aussie Bob]

If you look into legality, liability and aviation then you may as well give up flying and sit at home.

Due to the press and the legal system Australians are increasingly becoming paranoid ninnies, is this you?

BTW I also agree with XXX, why the heck are you auctioning a flight with you as pilot anyway? Ego perhaps?

And there I was thinking pilots were humble ego free folk ...

[tail wheel]

a. Is it legal to take a passenger for a flight, if that passenger bid for the flight as part of a fund raising auction? (money went to school, and the flight was donated, ie paid for completely, by the pilot).

b. What would the legal ramifications be, if during the subsequent flight, something was to happen and the aircraft (hired from a school) was damaged, and or, the passenger was injured?

Pilot qualification PPL or CPL? Operated under the flying school's AOC? Planned private, aerial work or charter?

I think you answered your own question: "that passenger bid for the flight" so there was a financial consideration in exchange for the flight?

Refer my comment in this thread (http://www.pprune.org/dg-p-general-aviation-questions/464148-scenario-aviation-fundraising-event.html). Potentially a heap of heart ache for very little gain!

Why not ask a flying school to donate or discount a TIF to the charity and auction or sell tickets? :confused:

[MilFlyer]

Think back to Christmas day a couple of years back when a 172 hit power-lines through his own stupidity and the pilot subsequently died in the post impact crash and burn.

A local charity had recently raffled a flight with the crash pilot. Makes you wonder if the whole charity thing is a good idea.

For what a basic joy flight in a 172 costs with a reputable operator versus the income from the raffle or auction, why would you bother with the hassle?

You would be better off approaching a reputable charter operator or flying school and asking for mates rates, or even better asking if they would donate the flight.
http://images.ibsrv.net/ibsrv/res/src:www.pprune.org/get/images/statusicon/user_offline.gif http://images.ibsrv.net/ibsrv/res/src:www.pprune.org/get/images/buttons/report.gif (http://www.pprune.org/report.php?p=6709876) http://images.ibsrv.net/ibsrv/res/src:www.pprune.org/get/images/buttons/reply_small.gif (http://www.pprune.org/newreply.php?do=newreply&p=6709876&noquote=1)So let me clarify.
1. 'Christmas present' pilots die in power lines because they are stupid.
2. No pilot who has ever filed a Safety occurrence report should ever be allowed to help people.
3. Charities holding raffles are bad unless you [designated leftist] approve.
4. Given that you could have dinner in a 5-star hotel, why would you bother with the hassle of someone so arrogant?
5. Would you be better off doing what you essentially originally asked for [but I selfishly diverted you off on]

[Aussie Bob]

milFlier your point is???

If a person buys (like parts with money for) a flight in an aeroplane with a total stranger then the least they could expect is a commercial pilot operating under an air operators certificate.

Clearly Coolnames does not meet these requirements otherwise he would not be posting this question.

[allthecoolnamesarego]

Thanks to all for the info/comments/suggestions.

To Aussie Bob

Due to the press and the legal system Australians are increasingly becoming paranoid ninnies, is this you?

BTW I also agree with XXX, why the heck are you auctioning a flight with you as pilot anyway? Ego perhaps?


Actually, no I'm not a paranoid ninnie, just someone who looks into things from an adult point of view. I would hate for something to go wrong and for the family of the pax, to be out of pocket, or indeed for my family to suffer financially, because I didn't bother to check what I was offering was legal.

As for the reason I am doing the flight; simple. It is (if I decide to do it) as a fund raiser for my child's school, a school that I'm heavily involved with, where most of the parents know me and where I thought it would be nice to offer a flight with a parent of the school; it adds to the sense of community.

Ego has nothing to do with it.

The other reason is the cost. I can hire a Decathlon for $300/hr so a half hour flight with me will cost ME $150. I do not know anyone who can 'donate' a flight, so since I am a pilot, I thought I could do it.


Tail wheel,

Thanks for the link:ok:. To answer your questions, I am an ATPL pilot, I would hire the aircraft from a flying school as a private operator (I assume - hence asking questions here)

It seems it might be more hassle than it is worth, however, I will keep looking into it and do appreciate the responses.

Cheers

Coolnames

[Aussie Bob]

Apologies Coolnames if I caused any offence, but my question now is if you are an ATPL then why don't you simply conduct the flight as a charter under the flying schools AOC?

[allthecoolnamesarego]

From the link provided by Tail wheel


There is another wannabe commercial pilot posting here curently about the same thing.

See: Legal implications should an accident happen

All I say if a member of the public pays anything for a flight with a stranger be it a donation or whatever then the least they deserve is a commercial pilot operating under an air operators certificate.

Bob, just because I ask a question, how does that make me a 'wannabe commercial pilot'? An apology would be graciously accepted:)

[allthecoolnamesarego]

:):)

Bob,

Thanks for the suggestion to operate as a charter. I will talk to the school where I hire aircraft from and investigate.

I only ever hire aircraft for private flying, and as such have never operated as a 'charter' (AFAIK).

Just to let you know why I am asking, I spent over 20 years in the Military and now fly for an airline. As a result of not having gone through the GA route, I have not operated charter flights before.

I now have a little bit more info, so possibly have some options.

Thanks for the suggestion

Cheers

[Grogmonster]

Aussie Bob,

He cant do it under the flying school AOC, regardless of qualifications, because he has to be properly inducted onto the AOC and that involves a whole shedload of work including an Alochol & Drug test, Check flight, etc etc.
I doubt very much that it would be worth the effort.

Groggy

[thorn bird]

took the words out of my mouth Groggy, CASA make it almost impossible to employ someone casually.
Lets see..
Half a warehouse of paperwork
Induction course
CAO 20.11 course including wet drills
DAMP test
Proficiency check.
Not worth the effort

[mostlytossas]

Last time I looked cost sharing in Australia was perfectly legal for private flights. So are free flights if the pilot so wishes and always have been.
All you need do is make sure the passenger/s is aware it is a private flight and also should advise them of the insurance cover. It is then up to them if they choose to proceed or not. No different to jumping on the back of a motorbike,speed boat,or bungy jump for that matter.
It does not need to get any more complicated than that unless it is a commercial operation for hire and reward.

[Aussie Bob]

Dear oh dear, clearly it is time to eat my slice of humble pie and opt out. I should have known of CASA requirements and have opened my mouth a bit too wide without thinking.

Thanks for accepting the apologies Coolnames and good luck with the charity raising project.

[tail wheel]

It does not need to get any more complicated than that unless it is a commercial operation for hire and reward.

The proposed operation certainly appears to be in the nature of "for hire and reward" as the charity is the beneficiary of a financial consideration in exchange for a flight.

My post was to urge caution - I do not know and am not preempting what view CASA or the Courts may take.

A little more research revealed CASA Ruling 3/2003 "Application of CAR 206 to operations conducted for the benefit of a charitable entity" (http://www.casa.gov.au/wcmswr/_assets/main/rules/rulings/ar0303.pdf).

allthecoolnamesarego may be well advised to contact CASA, provide details of the proposed charitable flight and seek confirmation that the flight is within the provisions of CASA Ruling 3/2003? It may be that simple?

Perusal of the aircraft owner's passenger liability insurance or obtaining an indemnity from the passenger may be prudent.

One assumes that those who post in this Forum are professional pilots, familiar with relevant aviation legislation - although I have my doubts, looking at some of the posts in this thread! :mad:

[aerobatologist]

The proposed operation certainly appears to be in the nature of "for hire and reward" as the charity is the beneficiary of a financial consideration in exchange for a flight.My thoughts exactly. There is also a strong implication that the pilot and aircraft is for hire, which would not be legal if he is flying under Part 91 as implied.

There is a clause in the US FAA regs. for PPLs & private Ops to conduct flights for charity, under a number of conditions, but this is not legal under NZ CAA and I assume CASA rules.

My personal advice: don't do the flight unless you have written authorisation from CASA. It would probably be better for all involved if you sponsored a flying lesson for the lottery winner with the nearest flying club.

[Lancair70]

We did exactly this last year for my sons pre-school.

We approached the local joyflight operator, he agreed to provide his pilot services if we paid for the aeroplane. I asked about myself flying (CPL) it but as pointed out already, the headache of geting ones self onto an operators AOC for one flight just wasnt worth it. So we, my wife and I, paid for the flight up front and auctioned it off at the pre-school fete. The winner enjoyed the flight with the operator, all legit, no problems.

[LeadSled]

A user of aviation rulings should also be aware that a ruling is only a statement of CASA’s policy. It is not a restatement of the law. Accordingly, while rulings are drafted to be consistent with the law referred to in the ruling as understood by CASA from time to time, they cannot displace any inconsistent legal requirements.

Folks,
The above from Mick Toller's policy, which, if you read the whole policy document carefully, is in itself, internally inconsistent. CASA "policy" statements have no legal standing, they are not the equivalent of an ATO binding ruling.

CASA successful legal actions since have rather rendered this document obsolete.

Indeed, in one case, a Museum (and registered charity) providing an annual free flight to members renewing, in a Museum owner aircraft, was found to be conducting an operation in violation of CAR 206.
This was after the local CASA office "approved" the operation, and provided "advice" to "ensure" CAR 206 was not violated.

Most, if not all, Australian aviation insurance policies are void if a breach of the regulations has occurred. Worse, this can apply even if the breach had nothing to do with the cause of the accident. I know of several cases that have gone on for years, the damages awarded (subject to appeal) were crippling, not to mention the legal costs, and quite literally having your life on hold for years.

The short answer is don't.

The potential liability of the aircraft owner, operator and pilot in command are just too great. Let the charity buy the time from an AOC holder, and conduct the flight as a charter. Even that will not stop the charity being joined in a damages action.

Tootle pip!!

[allthecoolnamesarego]

Thanks for the advice,

I think I'll give it a miss. A shame really......

[Ted D Bear]

Hmmm.

Is the pilot doing it for hire or reward? No. In fact - the opposite: he's spending some of his own hard earned $$.

Is the owner or operator of the aircraft doing anything for hire or reward in the sense of CAR206? No. It's hiring out the aircraft to the pilot.

Is the school (or parents' association or whatever) conducting the flight at all? No.

Plenty of bottles of wine auctioned off without a liquor licence, I'm sure ...

Gotta wonder.

Ted

[LeadSled]

Is the owner or operator of the aircraft doing anything for hire or reward in the sense of CAR206?Ted D Bear,
Although the word "commercial" rates a mention in 206, "hire and reward" went with the Air Navigation Act long ago, when the Civil Aviation Act 1988 appeared.
CAR 206 is about "classification of operations" that require an AOC, and is interpreted very broadly by the courts, at CASA/DPP urging.
Beware of interpretations that run foul of precedents.
Tootle pip!!

[Frank Arouet]

Using the variations with potential conflict of CAR 206, The EAA Young Eagles Programme in the US would most probably be illegal in Australia despite that organisation probably having passenger insurance.

We will soon have Kids here who have never had the chance to fly in a "little aeroplane" let alone shoot a .22 at a rabbit.

I've had the best years of my life, it's just a pity our future Youth won't get the same chance.

[Aussie Bob]

I dunno Frank, saying you have had the best years of your life is like giving up.

In my world there are still rabbits, 22 rifles and kids having fun. It is still possible to do 220 kph on a motorcycle with impunity and flying down the beach at dot feet doesn't attract attention.

In my world fortune seems to favour the risk taker and if I wanted to auction a flight I would just go ahead and do it. I guess the whole problem with this thread is that when you put yourself in a position of fear of legal implications and worst case scenario consequences fortune no longer favours you. You join the rest of the drones that inhabit planet earth.

No offence to the permission seekers intended ...

[LeadSled]

Folks,
Adding to what Frank has said ( and he is correct) about the EAA Young Eagles, CASA has declared that the Scouting Associations of Australia air experience flights also require an AOC.

Interestingly, over tens of thousands of flight over many years, the only accidents causing injury to a Scout occurred when using an AOC operator, as a charter, because none of the usual aircraft used by the Scouts was available.

To not put too fine a point on it, CASA completely stuffed an operation with an impeccable safety record, all because of a "new" and very narrow interpretation of CAR 206 in about 2002.

Tootle pip!!

[allthecoolnamesarego]

Hi,

In case anyone else is interested, here is an email exchange with CASA.


I am writing to seek some information/guidance regarding the legal implications of offering a joy flight, as part of a school fundraising activity. I am in the process of determining if the school meets the requirements of 30-227(2) of the Income Tax Assessment Act 1997 (Cth).

Should the school in fact be designated as a 'charitable entity', I understand that according to CASA Ruling 3/2003, I would be permitted to offer and conduct a flight, which was 'purchased' as part of the fund raising activities.

I am an ATPL rated pilot (ARN xxxxxx) who would hire an aircraft from a flying school (most likely xxxxxxxxx), in order to carry out any such flight.

From CASA's point of view, are my assumptions regarding Ruling 3/2003 correct, and if so, is there any other information CASA could provide which pertains to 'charity' flights?

Thanks in advance,

Yours Sincerely

Reply 1.

I am informed that it is likely that CASA Ruling 3/2003 will be withdrawn.

However, under section 30-227(2) of the Income Tax Assessment Act 1997, by the Australian Taxation Office;

- if the school is endorsed a Deductible Gift Recipient and;
- providing any funds collected are retained by agreement with the aircraft operator, and;
- you do not receive any funds;
- operator is entitled to receive costs associated with hire of the aircraft to you.

I hope this answers your question.

Regards,

Second letter:

Thanks for the reply. I appreciate the reference to the ATO section regarding the provisions of section 30-227(2), however, I am still unsure what CASA's position is regarding the proposed flight.

As you mention that CASA ruling 3/2003 will be withdrawn, I take it whilst the ruling remains in effect, I would not be in breach of any CASA ruling or regulations should I conduct a flight as previously described (provided the School is a recognised DGR). In short, is it legal for me to operate a flight in which the passenger paid a third party (namely a school fundraising committee) for that flight, with no moneys being paid to me? Would this situation constitute a charter operation for which I would be required to operate as PIC under an AOC?

If the flight was to be conducted after the withdrawal of CASA Ruling 3/2003, would I then be in breach of any ruling or regulation?

The proposed flight would be donated by me (I would personally pay for the hire of the aircraft) and given to the school in order to be auctioned to the highest bidder. I would hire the aircraft from a flying school and act as PIC for the flight.

I was hoping that CASA could provide a clear and unambiguous ruling so that I am able to either conduct the flight without being in breach of any regulations, or abandon the idea completely.

I would greatly appreciate any further assistance you could provide on this matter.

Kind Regards

Final response:

Hi Xxxx. It is my understanding, that while the ruling is in place you are able to conduct the proposed flights. No time line has been proposed for the withdrawal of the ruling as far as I know. Providing the rules below apply to your proposal, the advice that I have received indicates that your proposal is not in breach of the current rule set.

Regards,