I think the most significant issues that are yet to be established concern the identities of those involved in arranging this flight and their respective culpability.
Although we await the invaluable information from the AAIB that could provide us with the specific technical causal factors of this tragedy, after reading Mearn's and others remarks, I fear that little more than has been previously stated on this forum will be learnt. Without recovery we won't know for certain if there was any number of specific causes- pilot incapacitation, pilot spatial disorientation, engine failure, icing on leading edges, icing on prop, if weight or CG issues compounded the difficult situation. A full recovery may not answer all those questions but it would certainly be able to eliminate some possibilities.
Again, as previously stated, everyone and their brother knows that this was an illegal/'grey' charter in a private plane in IMC under control of a PIC who only had a daytime VFR PPL. If there's any doubts or 'grey' area in your mind- see 'Bobertz'- concerning an FAA licenced CPL in a private N-reg within the US on a 'cost-sharing' flight. See end of post to read in full.
As I've been alluding to, I feel that the only thing we'll learn in aviation terms from this tragedy is some clarity on licensing, regulation and hopefully some endeavour by those with the authority to do so to clamp down on those taking commercial advantage of the 'grey area'. I doubt we'll see a bulletin about a PA46's icing boots needing to be re-designed, or, all 4 year old turbine engines on 35 year old planes need dumped! One wee question going round in my head- did the computer whizz kids that set up the wingly website do it for free? 🧐 If not, that means they're profiting even if the pilots on the site are simply sharing costs. Does that make wingly in itself an unlicensed Air Operator? I've been trying to think about it 🤪
As has been said before- increased regulations and paperwork will only hurt those who abide by the rules. The rules are there already, and those breaking them now will still break them afterwards. It's a matter of increased detection, public awareness, CAA being more pro-active in seeking non-compliant operators and harsher on them when they're caught etc.
The legal ramafications from this accident alone should hopefully serve as a warning to those flouting the rules. Insurance companies (apart from the families) possibly have the most to lose. As do two professional football clubs, both in the top tier of their respective countries. If I was going to get into detail... I'd be looking for McKay and Henderson, their relationship and the relationship of them to the aircraft owner. How much control did McKay have? Did his son's leaked conversation with Sala somehow exonerate him or confirm his involvement?? I'm not quoting, but from memory, young McKay offered Sala the flight and Sala had asked how much it would cost him. Young McKay said that it's free as long as he helped him score some goals. Sala responded 'we'll score lots of goals'. Was that offer and acceptance? Was that a contract in itself? McKay provides plane and travel for Sala, Sala helps young McKay score goals. Consideration for the contract was shown on both sides- the plane turned up, and Sala subsequently boarded. But how about Henderson...?
Was he the operator of this unlicensed operation? Did he organise it? Was there a pre-existing relationship of this type that could be brought to light? The relationship between McKay and Henderson will be crucial. Was it for reward? Or was this a huge anomaly? Maybe Dave Henderson told his mate McKay he was going to Nantes for the weekend, and his mate McKay told him of the huge coincidence... that he'd just organised a transfer, and asked if he could give the guy a lift on his way back in exchange for some fuel money... then... at the weekend Henderson was bed-ridden with flu but didn't want to let his mate McKay down, so he asked his other mate Ibbotson to bring Sala home because his mate McKay was relying on him. Highly doubtful, but would somewhat mitigate Henderson and McKay's involvement.
BOBERTZ:
This memorandum is in response to your inquiry regarding whether a pilot shared the common
purpose with his passengers of traveling to a canoe race thereby enabling him to share operating
expenses for a series of flights under 14 C.F.R. § 61.1 13(c).
The information you provided to us contains the following scenario. A pilot, who holds an
airline transport pilot (ATP) certificate, was asked to fly members of a canoe club from
Honolulu, Hawaii, to Molokai, Hawaii, for a race. He agreed and arranged to use a four-seat
Cessna 172 airplane owned by a person who "is also friends with the Canoe Club." The pilot
would fly three club members to the race site, return without passengers, and then pick up
another three passengers. These flights would be repeated until the entire team was transported
to the race site. The airplane's owner and the pilot discussed the airplane's operating costs and
determined that each flight would cost $120-150. They also determined that the pilot and
passengers could each pay a pro rata share of each passenger-carrying flight; $100 of the cost of
each flight would be divided among the three passengers and the pilot would contribute $35.
The pilot made nine trips to transport the team to the race - four on one day, and five on the next.
The total expenses for the flights came to $1,280. To cover the expenses the canoe club paid the
pilot $900 (collected from the passengers), representing the cost of transporting the racers, and
the pilot contributed $380. The pilot states that he "knew and had socialized and paddled with
numerous club members," and contends that he had a common purpose with the canoe racers in
attending the event of "furthering the club's cultural interests, its competition record, and the
continued development of our teams." See Nov. 25, 2008 Letter to Chris 1. Collins, Manager,
Honolulu Certificate Management Office, and Oct. 4, 2008 Letter to Jon B. Murakami, Aviation
Safety Inspector, Honolulu Flight Standards District Office (both letters contained in the
materials provided).
Private pilots ate prohibited from carrying passengers for compensation or hire with certain
exceptions. See 14 c.P.R. § 61.113(a)-(d). Section 61.113(c) provides an exception to the general rule by allowing a private pilot to obtain a pro rata reimbursement from his passengers
for fuel, oil, airport expenditures, or rental fees. The FAA has consistently interpreted this
exception to require a pilot to share with his passengers a bona fide common purpose for
conducting the flight. See Legal Interpretation to Guy Mangiamele, from Rebecca B.
MacPherson, Assistant Chief Counsel for Regulations (Mar. 4, 2009); Legal Interpretation to
Peter Bunce, from Rebecca B. MacPherson, Assistant Chief Counsel for Regulations (Nov. 19,
2008); Legal Interpretation to Thomas H. Chero, from John H. Cassady, Assistant Chief
Counsel, Regulations and Enforcement Division (Dec. 26, 1985); Legal Interpretation to Bob
Von Seggem, from John L. Fitzgerald Jr., ACE-7 (Dec. 19,1977-81).
Absent a bona fide common purpose for their travel, reimbursement for the pro rata share of
operating expenses constitutes compensation and the flights would be considered a commercial
operation for which a part 119 certificate is required. See Legal Interpretation to Peter Bunce,
from Rebecca B. MacPherson, Assistant Chief Counsel for Regulations (Nov. 19,2008).
Whether a bona fide common purpose exists depends upon the facts of the situation at hand.
See, e.g., id. (finding no common purpose when a volunteer pilot transported ill or injured
individuals to medical treatment facilities for compensation because the choice of destination
was dictated by the passenger and the pilot's only purpose was to provide transportation to the
passenger); Legal Interpretation to Thomas H. Chero, from John H. Cassady, Assistant Chief
Counsel, Regulations and Enforcement Division (Dec. 26, 1985) (finding no common purpose if
the pilot is transporting passengers to a destination where he has no particular business to
conduct).
The pilot in this scenario claims that he shared a common purpose with his passengers because
the flights were to further the canoe club's cultural interests, its competition record, and the
continued development of its teams. The pilot was asked to fly the team to the race by another
pilot who previously transported team members. There is nothing to suggest that the pilot
intended to attend the race, or to fly to the race site, for any reason other than to transport the
team. Furthermore, the pilot needed to conduct a total of nine flights in order to transport the
entire team.
Based on these facts, it is clear that the team dictated the destination and the flights were
conducted with the purpose of transporting the team to the race. Because the purpose of the
flights was to transport the team members from Honolulu to the race site, the § 61.113( c)
exception does not apply, and the pilot is prohibited from receiving compensation in the form of
the passengers' pro rata share of the operating costs of the flights. See 14 C.F.R. § 61.113.
Assuming, however, that the pilot planned to attend the race and conducted the flights with this
purpose, his bona fide common purpose with his passengers for making the trip would only
extend to the first flight to the race site. This is because following this flight he would be at his
destination and able to attend the race. If the pilot had carried any passengers from the race back
to Honolulu, then the bona fide common purpose would also extend to the one flight the pilot
needed to conduct in order to return home. Subsequent flights would not be necessary for
achieving his purpose of attending the race and would therefore be solely for the purposes of
transporting the team.
With respect to conducting the flights for compensation, your request notes that the pilot, who
holds an ATP certificate, argues that any time logged on these flights should not count as
compensation because building general aviation flying time in a Cessna 172 does not advance his
career. Generally, accrual of flight time is compensation and the FAA does not enter into a case-
by-case analysis to determine whether the logging of flight time is of value to a particular pilot.
Legal Interpretation to John W. Harrington, from Donald Byrne, Assistant Chief Counsel (Oct.
23, 1997) [1997-23]. Moreover, this argument does not alter the fact that, as discussed above,
the pilot received compensation for the flights from the canoe club members by accepting their
pro rata share of the cost of the flights.
Second, as noted above, the pilot holds an ATP certificate which raises the issue of whether the
pilot could have conducted these flights for compensation or hire. One privilege conferred upon
ATP certificate holders is the ability to act as a pilot in command of an aircraft carrying persons
or property for compensation or hire. See 14 C.F.R. § 61. 167(a), 61. 133(a)(1). However, in
order to conduct such operations, the ATP certificate holder must also obtain a part 119
operating certificate when operating a civil aircraft as a commercial operator in air commerce.
See 14 C.F.R. § 119.1 (a)( 1). A commercial operator is a "person who, for compensation or hire,
engages in the carriage by aircraft in air commerce of persons or property." 14 C.F.R. § 1.1. Air
commerce is defined as "interstate, overseas, or foreign air commerce ... or any operation or
navigation of aircraft within the limits of any Federal airway or any operation or navigation of
aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign
air commerce." Id.
Here, the pilot received compensation from the canoe club members he transported to the race.
See Legal Interpretation to Peter Bunce, from Rebecca B. MacPherson, Assistant Chief Counsel
for Regulations (Nov. 19, 2008) (noting that a pro rata share of operating expenses is
compensation). The flights were also conducted in air commerce; the fact that the flights were
conducted solely within the state of Hawaii does not except them from the FAA's oversight. See
Legal Interpretation to Allan W. Read, from John H. Cassady, Assistant Chief Counsel (March
14, 1985) [1985-4] (noting that the FAA's authority has been broadly construed to extend to
intrastate flights because of their safety impact on interstate air commerce); Administrator v.
Clifford 0. Barrows, NTSB Order No. EA-3061 (Jan. 3, 1990); Administrator v. Michael Dan
Ferguson, NTSB Order No. EA-1822 (Aug. 13, 1982); Administrator v. Mira Slovak, NTSB
Order No. EA-587 (June 5, 1974). Accordingly, the pilot would need a part 119 air operator
certificate to conduct these flights for compensation or hire.
This response was prepared by Dean Griffith, Attorney in the Regulations Division of the Office
of the Chief Counsel, and was coordinated with the General Aviation and Commercial Division
of Flight Standards Service. Please contact us at (202) 267-3073 if we can be of further
assistance.