A question on Air Law

[c_jephcott]

Fellow aviators,

Just a very quick one, as following on from the recent weather in this region, TORRO have approached me would like me to overfly the sites of any Tornado touchdowns in the future to observe for damage.

Now, as PPLs, I know we're not allowed to fly for hire or reward, but presuming that I was to do this for free and was to pay for the fuel costs out of my own pocket, this is still within the rules of the air isn't it?

Also, if TORRO did ask if they could pay for the fuel, where would I stand on this?

I need to get my air law textbooks out again and read through all that beautiful legal jargon, as I don't really fancy getting a strip torn off by the CAA!!!

Cheers
Chris

[tmmorris]

Yes you can do it; no, they can't pay for the fuel (or for anything at all).

Tim

[c_jephcott]

I thought so, but I just thought I would check before I committed to anything at all.

Thanks for clearing that one up!

Chris

[J.A.F.O.]

Just out of interest, if you paid for the flight and the fuel in its entirity could you then charge several hundred pounds for the report that you gave?

[Flyin'Dutch']

You can; but it would be in breach of the ANO.

'Hire or reward' is the phraseology ISTR.

[Justiciar]

If you receive 'valuable consideration' then the flight is aerial work. This can mean not only money paid but any other benefit give in exchange for the flight. Charging for the report would come into that category if you were bing engaged to produce the report by the customer and the flight was a key part of the preapration of the report (as appears to be the case here).

[c_jephcott]

OK no problems at all - so if I was to do the flight and I was to pay for the fuel and hire of the aircraft, and then not accept any form of payment at all (be it reports, or free membership to TORRO), then it is within the laws.

The end fact is that I am more than prepared to do the flights for Torro for absolutly no reward or hire or valuable consideration, as meteorology fascinates me.

[Justiciar]

Then you have no problem

[aluminium persuader]

Damage caused when Tornadoes touch down? Hope no-one from Marham's reading this!
;)

[Whirlybird]

Are all of you sure about the being paid for the report side of this? I think you're wrong. This would, logically, mean that many of the people writing articles for the flying mags - flight tests, travel-type articles etc - were breaking the law. Those without CPLs anyway. I don't think that's ever the way it's been interpreted before. Flying Lawyer, where are you????

(No personal attacks please. Yes, I do write for the mags, but yes, I do have a CPL)

[IO540]

To complicate matters further, there are very few things which need a CPL but which don't need an AOC. One of them is that with a CPL one can be employed as a pilot by one's employer, to fly on THAT firm's business only. As soon as any 3rd party is involved, that's a no-go.

The ANO is vague (probably deliberately so) and badly drafted. One example is the "valuable consideration" bit (making a flight Aerial Work). It doesn't specify the direction in which the VC needs to flow to make it AW.

So if a plain PPL rents a C152 from his flying school, VC is flowing from the pilot to the school. That should make the flight AW. Obviously it doesn't in reality! No reasonable person would regard VC flowing FROM the pilot (i.e. aircraft rental) as relevant to AW.

But VC flowing TO the pilot does make the flight AW (other than in the specific exemptions in the ANO e.g. charity flights or PPL Cost Sharing) in the eyes of the CAA, and that's understandable.

Funnily enough, a while ago I spoke to a very senior person in the CAA enforcement dept, and he said that VC flowing in ANY direction makes the flight AW. He presumably forgot the UK self fly hire business .... but it shows the widespread confusion.

Have I missed something?

[homeguard]

The restriction to allow only a Commercial Pilot to receive a valuable consideration is for the specific role of acting as pilot. It is perfectly ok for a PPL to fly an aircraft on behalf of his company as long as he is not paid as a pilot but rather flies only in the process of doing his job for which he is paid.

If a surveyor or photographer who is only paid for the report or photographs then in the process of his work chooses to fly an aircraft then he is not acting as pilot for hire or reward. If this were not so it would mean that should a PPL wish to use an aircraft to travel to a meeting instead of using the car they would also be flying for hire an reward. They are being paid by salary or fee for their time after all but not to act as pilot.

What the instigator of this thread appears to be suggesting is that he would prefer to do the survey, flying, that being his means of transport, rather than visit the sights by using his car. Sounds ok to me.

[bookworm]

Have I missed something?

Yes. You would be correct were it not for para 3(c) below. From Art 130:

2 Subject to the provisions of this article, an aircraft in flight shall for the purposes of this Order be deemed to fly for the purposes of public transport:
...
(c) for the purposes of Part III of this Order (other than articles 14(2) and 15(2) thereof), if valuable consideration is given or promised for the primary purpose of conferring on a particular person the right to fly the aircraft on that flight...

3(c) Notwithstanding the giving or promising of valuable consideration specified in subparagraph (2)(c) in respect of the flight or the purpose of the flight it shall:

(i) subject to sub-paragraph (ii), for all purposes other than Part III of this Order; and

(ii) for the purposes of articles 14(2) and 15(2) of this Order;

be deemed to be a private flight.

[IO540]

That is curious.

ANO Part III deals with airworthiness.

ANO Articles 14(2) and 15(2) refer to aircraft equipment; not relevant to flying or aerial work.

Has the ANO been renumbered since my 2003 copy? :O

Homeguard: *It is perfectly ok for a PPL to fly an aircraft on behalf of his company as long as he is not paid as a pilot but rather flies only in the process of doing his job for which he is paid.* A PPL also must not be contractually required to fly.

[bookworm]

ANO Part III deals with airworthiness.

ANO Articles 14(2) and 15(2) refer to aircraft equipment; not relevant to flying or aerial work.

Exactly. In plain English, if an aircraft is hired out, it must be maintained on a public transport category C of A, but it need not be equipped as a public transport flight. And for all other purposes, it is treated as private flight.

[Justiciar]

The problem here is taking small sections without reading them in the overall context of the Order.

The first part of paragraph 130 says:

(a) Subject to the provisions of this article, aerial work means any purpose (other than public transport) for which an aircraft is flown if valuable consideration is given or promised in respect of the flight or the purpose of the flight.
(b) If the only such valuable consideration consists of remuneration for the services of the pilot the flight shall be deemed to be a private flight for the purposes of
Part III of this Order.

So, sub paragraph (a) makes a flight for which valuable consideration is given or promised aerial work. If the only valuable consideration is a payment to the pilot then for the purposes of aircraft certification only it is treated as private. In other words, if you pay a someone to fly your aircraft from A to B you do not need a Public Transport C of A, and by article 130(3)(c) it is deemed to be private for other purposes. However, the person you pay has to have a CPL, in accordance with Schedule 8 of the ANO.

Coming back to the point in issue, if someone pays you to fly and take photos or obtain data for a report, that is Aerial Work, as the payment is more than just for the services of the pilot, because the purpose of the flight is to take the pictures, gather the data etc and payment is being made for that. Valuable Consideration is defined in paragraph 129 of the Order as:

any right, interest, profit or benefit, forbearance, detriment, loss or responsibility accruing, given, suffered or undertaken pursuant to an agreement, which is of more than a nominal nature

If you go up on your own initiative to take photos, etc in the hope of selling them then this is not Aerial Work as there is no "agreement" giving rise to payment of any form of consideration.

I think Wirlybird's point is an interesting one. The position of a journalist employed specifically to write air test reports and articles is arguably in receipt of consideration pursuant to an agreement, making any such flight aerial work. If on the other hand it is not part of his contract then the position is different.

[Cathar]

Has the ANO been renumbered since my 2003 copy?

Yes but its not in effect yet.;)

A new Order has been made and comes into effect later this month so new lots of new article numbers for everyone to learn. :{ I am told that article 130 has been split into several seperate articles although the substance hasn't chenged

[bookworm]

because the purpose of the flight is to take the pictures, gather the data etc and payment is being made for that

One test that might be used is something like:
"If no valuable consideration had been given nor promised, would the flight still have taken place in a substantially similar way?"

If the answer is no, it would seem that valuable consideration has been given or promised in respect of the flight or the purpose of the flight.

That for me at least helps to differentiate the travel articles (answer: yes) from the flight tests (answer probably: no).

[IO540]

Is there any case law on this?

These are criminal (not civil) matters and the CAA would have to prove BRD that the flight which is alleged to have been AW would not have been flown just for fun.

I know (1st hand, pre-CPS, motoring offences) that a few Magistrates are thick as a plank but any accused with more than 2p and a remotely good lawyer would appeal an obviously dodgy verdict.

Quite a few people like to fly anyway :O I fly at least once a week just for currency, for example.

It's like an instructor training for the IMCR in a Private CofA plane (non-owner case). Traditionally, he would charge for "ground school". In the absence of the student dropping the instructor in the **** with a statement confirming payment was made/promised for FLYING, what approach do the CAA use to make the allegation stick?

Otherwise, we can have these wonderfully academic debates for ever.

My feeling on this is that, for the most part, the CAA prosecute only the most blatent cases. The trouble with aviation is that there is always somebody who tries something on. Which is why the ANO is an unreadable jumble.

[homeguard]

IO540

Why must holding a PPL and flying an aeroplane not be in a job contract. Having a pilots licence and then flying an aeroplane in the process of ones work is perfectly legal. It may be condition of any job contract. In the same way that you may be required to drive the company or your personal car in your employment. BUT you cannot be paid as a pilot or receive benefit of any kind SPECIFICALLY for the ACT of flying unless you hold a CPL. That is the difference.

[IO540]

Homeguard,

The bit about the pilot not being contractually required to fly is in the ANO, article 130. In my copy it is (9) (b)

"provided that neither the pilot in command nor any other person who is carried is legally obliged, whether under a contract or otherwise, to be carried."

Otherwise it is AW.

Of course, I may have taken this out of context. Such is the ANO. Unless one reads the whole lot, memorises it, one cannot be sure there isn't another para elsewhere that applies.

Your "difference" seems a very fine piece of hair splitting. Do you have some reference for this? Maybe the CAA have issued some flyer clarifying this; they've published many of those. How can a pilot be contractually required to fly (i.e. his contract of employment says he must fly on company business if asked to do so) and not be paid for the "act" of flying?

Traditionally, PPLs have always flown on their own business. (Unless one rents the plane out, this is indeed a requirement if one is to get Revenue/C&E concessions for it as a business asset). But the pilot has the choice of driving, walking, flying, etc.

[homeguard]

IO540

I thought it worth quoting the whole of the ANO particular section refered to.

(9)

(a) Subject to paragraph (b), a flight shall be deemed to be a private flight if the only valuable consideration given or promised in respect of the flight or the purpose of the flight other than:

(i) valuable consideration specified at paragraph (2)(c); or

(ii) in the case of an aircraft owned in accordance with paragraph (10)(a), valuable consideration which falls within paragraph (10)(b);

is the payment of the whole or part of the direct costs otherwise payable by the pilot in command by or on behalf of the employer of the pilot in command, or by or on behalf of a body corporate of which the pilot in command is a director, provided that neither the pilot in command nor any other person who is carried is legally obliged, whether under a contract or otherwise, to be carried.

I am reading the '.......legally obliged .......' to mean that you cannot be employed to act as as pilot unless you hold a CPL and any passengers must chose. But does that fact bar an employer from taking into account that you have a PPL when considering employing you because they have an aeroplane that you MAY use whenever practicable and this will useful to them.

The CAA pay their employees a mileage allowance but that dosn't infer that they the CAA legally oblige their employees to drive cars. However one can invisage many situations whereby many CAA employees could not actually function other to to drive a car in the process of doing their job. In which case should we take it that for ordinary employees who drive as part of doing their job that they should hold Commercial Drivers licences?

I think one can look too deeply into many things without resolve. The law cannot have an answer for every action we take every day of our lives. Nor should it. Thank God that common sense can sometimes be the deciding factor.

[IO540]

Homeguard

But does that fact bar an employer from taking into account that you have a PPL when considering employing you because they have an aeroplane that you MAY use whenever practicable and this will useful to them.

Of course that's OK.

I can recruit a barmaid because she has a nice pair of "assets" (wouldn't be a good idea to put that requirement in the job description though, in these PC times) but I cannot put in her employment contract that she must use them for company business :O However if she appears willing to use them for promoting company business (which is exactly how barmaids are recruited) that is just fine... and, guess what....... she gets the job!

But that's not what you wrote previously. You wrote

Having a pilots licence and then flying an aeroplane in the process of ones work is perfectly legal. It may be condition of any job contract.

and I'd say that if flying is in the job description (as a required means of travel) then a PPL cannot do it.

The parallel with cars is irrelevant because driving isn't controlled by a stupidly convoluted piece of legislation called the ANO. Subject only to insurance limitations, you can drive for any purpose, excluding paying passengers I think.

I agree with your last sentence 100% - just as well since almost nobody can understand the ANO anyway.

[homeguard]

Yes, I do think it would be perfectly legal to state that the job applicant must hold a PPL to apply.

[Justiciar]

I do think it would be perfectly legal to state that the job applicant must hold a PPL to apply.

It is in employment law terms, but if the employee is then required to fly on a particular flight as part of his job then he is receiving remuneration for flying (because he is being paid under a contract which requires it) and that would be illegal, unless he has a CPL