When is "Commercial" Commercial?

[QSK?]

What Category

M20E and others:

If you look at page 31 of the CAR 1988 Amdt 14 March 2007 (7A(b)I think you will find any flight with more than 6 pob is not private

So, if I want to fly more than 6 people (including the operating crew) from A to B for no charge, what category of flight is it? Can't be RPT as no money is involved and its not a scheduled flight, can't be charter as no money is involved, can't be aerial work as the flight is only going between 2 ports and is not involved in airwork type activities, can't be military, medical or SAR - so under what category of operation can I do this flight?

[Creampuff]

There is no 6 POB limit on private operations

One of the many factors that exacerbate the classification of operations confusion is that many people in the aviation industry are poor readers.

Read regs 2(7)(d) and 2(7A), twice.

Reg 2(7A) is merely a deeming provision. Its effect is to deem a flight that satisfies all of the criteria of reg 2(7A), including the 6 POB limit, private. However, that does not mean that only those flights that satisfy the criteria are private.

There's still reg 2(7)(d). Any flight that satisfies the criteria in any one or more of the sub-paragraphs in reg 2(7)(d) is deemed to be private, whether or not the flight satisfies the criteria in reg 2(7A).

Note that any activity of a kind 'substantially similar to' any of those specified in 2(7)(d) (excluding conversion training) is deemed to be private, and one of the specified 'activities' is reg 2(7A). So, if an operation is 'substantially' similar to one that satisfies reg 2(7A) - let's say there are 8 POB rather than 6 - it's deemed to be private.

The flight could also fall within, or be substantially similar to a flight within, reg 2(7)(d)(v).

Note, for example, that if I own an aircraft, I can pay a pilot to fly me around in that aircraft, and the operation will be private.

Note, as another example, that if I own an aircraft, I can pay a pilot to carry out agricultural operations on land I own, using that aircraft, and the operation will be private.

There's a difference between carrying goods you own for the 'purposes of trade', and carrying goods you own - tools - for the purposes of your trade. People who buy and sell goods are 'trading'.

Most of the complexity in these rules is caused by politics, not safety. At the heart of most of the issues discussed in this thread - which is merely discussion 1,000,423,002 in an ongoing series - is the underlying intention of the regs to protect commercial pilots' 'patch' and keep cow cockies in marginal, gerrymandered electorates, happy.

But don't worry - the 'new' 'simple' classification of operations 'rules' will be out 'soon'. Numerous head dabblers at CASA have said so, many times.

[QSK?]

Creampuff:

I've only got 2 words to say to you and that is:

Thank You!

[tipsy2]

I wish somebody in CASA would write regs in plain (plane?) english.

Unfortunately the Reg's and the like are written by lawyers or others who can only think that way.
None of the aforementioned 'writers' have yet to write anything that remotely comes close to the one and only primary law/rule/regulation that we all must adhere to.

That is the law relating to the relationship of and the management of Lift, Weight, Thrust & Drag.

All the rest is peripheral fluff of punitive measures and strict liability trickery. Also most fail the simple test of "Do they add to the safety of flight" test. They regulate flight but it's another thing to try and regulate safety. The road rules are a classic demonstration of that sort of regulatory failure.

But don't worry - the 'new' 'simple' classification of operations 'rules' will be out 'soon'.

I doubt it.

tipsy
Not trying to upset creamy who does add value to these sorts of discussions. Pity he had to work with pilyks though

[bushy]

Rules?

The rules are rubbery, continually changing, and are often made for commercial reasons rather than safety reasons.
That is one reason why they have little credibility within the industry.

[tnuc]

I know an aircraft owner that lives in a remote location, he owns and sell accomodation (holidays) at the remote location and then offers to pick the guests up from civilisation and fly them out and back for free. The same guy owns a shop at the remote location and he regulary takes his own stock out to his own shop(several flights each week) . no doubt some of the items he transports are pre-ordered but at the time of transport the goods are his own.
CASA has been trying to stop this pilot for years and nail him but have been unable to get enough/any evidence to do him over, the airworthiness inspectors use terms like "what he is doing is not illegal but is not within the spirit of the rules"

[Creampuff]

On the facts as you describe them, tnuc, the classification of the operation is clear.

I note that in Chegwidden v. White (1985) 38 SASR 440 (a South Australian Supreme Court case) a private pilot arranged to carry a group of people from Parafield Airport to Kingscote on Kangaroo Island and back again, with a week’s holiday accommodation on the island and the use of a car while they were there for an overall price of $500. The defence argued that the transport was free, the customers only paid for the holiday house and the use of the car. The prosecution said that it was a package deal, the transport was an essential part of the arrangement, and the pilot was paid for it. Judge Cox said:

I am satisfied, on principle and authority, that if an aircraft operator agrees to provide, and does provide, a customer with a number of different services in return for a single overall charge, one of those services being a carriage of passengers or cargo on the aircraft, this will be enough to satisfy the hire or reward element. … It seems to me that there might also be a reward or recompense of the required kind where the operator of an aircraft flys a customer or his goods from one place to another in return for some substantial commercial benefit seemingly disengaged, in formal terms, from the active carriage. I may give a man a ‘free’ plane ride to Melbourne in return for an option to purchase his house or business, for instance, or offer to fly him to Kingscote and back if he undertakes to rent my holiday house while he is there. It does not matter that the benefit attributable to the act of carriage is intangible and difficult to assess in money terms, as long as it is substantial and actually provides the motivation for the flight in question.

The judge decided that there were two possible interpretations of the facts, both of which meant that passengers were carried for ‘hire or reward’. Either:

there was a package deal which included the plane trip as a significant component, or that the arrangement between the respondent and the holiday group was confined to the accommodation and car on Kangaroo Island but that the respondent’s motive or purpose for providing the ostensibly free transport was the valuable and substantial advantage he was to obtain by letting his holiday house, with a car, at the not inconsiderable figure of $500 a week. On either view this was enough to make out a case for the respondent to answer.

This AAT matter deals with one of the more recent (failed) attempts to squeeze a charter into the private classification: http://www.austlii.edu.au/au/cases/c.../1998/783.html

[Sunfish]

What if I casually ask a gorgeous girl if she would like to go for a flight and land and lunch at the excellent restaurant at Tooradin Airstrip (this mission aka: surf and turf, or "pretty woman" lite) , and afterwards........????????

Is that commercial? After all the judge says:

as long as it is substantial and actually provides the motivation for the flight in question.

The lady in question being "substantial" in certain respects.

Please explain.

[Creampuff]

Well Sunfish, it will be you, and not your 'substantial' female companion, forking out all the time, money and effort. She'll be the one at risk of being perceived as doing it for 'hire and reward', not you.

[ga_trojan]

Here is a scenario I know of where the owner got legal advice that contradicted CASA but had to close the business due not wanting to start paying enormous legal fees challenging it. I have changed a few things however the principles are the same:

Company owned aircraft, flying company employees on company business.

One employee happened to have a commercial license but was not employed in that capacity.

The company was not selling products to the customer however they did carry "Tools of the trade" For instance a carpet cleaning company flying company products/equipment out to a job then using these products and not selling any extra products in the process. The products carried on the aircraft were completely dispensed during the job. The aeroplane was used the same as a tradesmen would use his truck.

CASA deemed this to be commercial as they believed that by using his products he was selling goods for trade. The legal advice taken said that CASA were wrong. Suffice to say that service is no longer on offer as a result. Would have been an interesting one to see in court.


Another interesting scenario would be James Morrison. He has a company aircraft and his brother flys the band around when required. They carry the instruments on the aircraft. What's the go there?

Similarly if a singer is flown to a gig with just them on the aircraft is that private or commercial? In the town they fly to they are promoted as such, and their voice is the tools of their trade.

Food for thought!

[Jabawocky]

The Morrison gig is private.....its not a carter, its his plane etc etc....

The singer, if its his plane, refer above, if its chartered.....its not. Pretty simple example.

The post above I think is not so simple, but to me its private. Silly rules!

[ga_trojan]

Pretty simple example.

Not really if CASA say that a hypothetical carpet cleaner who flies his tools to a job is commercial then if you were to fly a professional band around with all their instruments what is the difference? Both make money of out the use of their tools. One cleans carpets the other plays music.

However this wasn't tested in court so ultimately everybody is whistling in the wind.