Let’s leave the classification of the operation question aside (BTW: I agree that the operation in which NGA was engaged was charter, and it appears that the parties to the litigation - including, presumably, the insurers - agreed) and focus on the distinction between POB who are crew and those who are not.
The spaghetti starts in the Dictionary in the 1998 regulations. A “passenger” is defined as a person who, among other characteristics, is
not “a member of the crew of the aircraft”. The Dictionary doesn’t define “crew” or “member of the crew” or “crew member”, but it does define “cabin crew member”.
The term “cabin crew member” is defined in the Dictionary in the 1998 regulations to mean a “crew member, other than a flight crew member, who performs, in the interests of the safety of the aircraft’s passengers, duties assigned by the operator or the pilot in command of the aircraft”.
The Dictionary in the 1998 regulations doesn’t define “flight crew member”.
However, the 19
88 regulations define “crew member” and “flight crew member”.
The 1988 regulations define “crew member” to mean “a person assigned by an operator for duty on an aircraft during flight time and any reference to ‘crew’ has a corresponding meaning.”
The 1988 regulations define “flight crew member” to mean “a licensed crew member charged with duties essential to the operation of an aircraft during flight time, and any reference to ‘flight crew’ has a corresponding meaning.”
So it seems that, on the current definitions, the question whether a person
other than “a licensed crew member” i.e. someone with a licence and “charged with duties essential to the operation of an aircraft during flight time” - is a passenger, depends on whether the person has nonetheless been “assigned by [the] operator for duty on [the] aircraft during flight time”. It seems there’s a difference between non-licensed crew who are ‘just crew’, and non-licensed crew who are “cabin crew”: the latter perform, in the interests of safety of the aircraft’s passengers, duties assigned by the operator or PIC of the aircraft, whereas non-licensed ‘just crew’ are apparently assigned by the operator for ‘other’ duties.
Meanwhile, the 1988 regulations still have a definition of “operating crew”, which means any “person who: (a) is on board an aircraft with the consent of the operator of the aircraft; and (b) has duties in relation to the flying or safety of the aircraft.” Before the definition of “passenger” was repealed in the 1988 regulations, a passenger used to be defined as every POB other than “operating crew”. However, the term “operating crew” is still used in and has some important consequences in the 1988 regulations.
Clear so far?
The characterisation of someone as a passenger now all now seems to boil down to the question whether or not the person has been “assigned by an operator for duty on an aircraft during flight time”. In other words, even if someone is e.g. performing duties in the interests of the safety of the aircraft’s passengers, the person will still be a passenger if the operator of the aircraft did not assign that person to duty on the aircraft.
Hence, on the current definitions it would appear doctors and nurses tending to patients on ‘medivac flights’ are passengers, unless they were assigned to that duty by the operator of the aircraft.
I don’t know whether I can take much more of this simplification.
