Private Vs Airwork
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Private Vs Airwork
I have a question regarding the subtle difference between private ops and airwork given the following circumstance:
You carry some fish to market on behalf of a friend. The friend pays for the aircraft. The pilot does not receive any form of payment.
Now the CAR states that a private op is:
CAR 7d(IV): the carriage of persons or the carriage of goods without a charge for the carriage being made other than the carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft;
Where as airwork is defined as:
CAR 206: (viii) carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft (not being a carriage of goods in accordance with fixed schedules to and from fixed terminals);
If I take some friends fish to market and he pays for the aircraft hire then doesnt that fall into the fact I am carrying his goods ( property of the hirer ) without a charge for the carraige ( other than the cost of the aircraft hire ), for the pupose of trade? i.e it's a private op?
I have been informed this is actually classed as Aerial work but I am struggling to see why as per the regs??
You carry some fish to market on behalf of a friend. The friend pays for the aircraft. The pilot does not receive any form of payment.
Now the CAR states that a private op is:
CAR 7d(IV): the carriage of persons or the carriage of goods without a charge for the carriage being made other than the carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft;
Where as airwork is defined as:
CAR 206: (viii) carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft (not being a carriage of goods in accordance with fixed schedules to and from fixed terminals);
If I take some friends fish to market and he pays for the aircraft hire then doesnt that fall into the fact I am carrying his goods ( property of the hirer ) without a charge for the carraige ( other than the cost of the aircraft hire ), for the pupose of trade? i.e it's a private op?
I have been informed this is actually classed as Aerial work but I am struggling to see why as per the regs??
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I read it as you do - "without a charge for the carriage being made" being the key difference. As long as you get nothing for it (i.e free fish) for it then its a private op, but I am not a lawyer nor a FOI.
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You carry some fish to market on behalf of a friend. The friend pays for the aircraft. The pilot does not receive any form of payment.
the carriage of goods otherwise than for the purposes of trade
As these goods are clearly for trade, it is not a private operation. Your friend couldn't even do it if he owned the aircraft and had a license and flew himself.
That's the way I read it anyway.
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Baswell - I think you did misread it - that paragraph 2 (7)(d)(vi) allows for the carriage of goods for purposes other than trade as a private op i.e flying your new TV home. I think you are reading it as carriage for trade excludes it from a private op, but that is allowed with conditions in the earlier paragraph.
The earlier paragraph (v) refers to carriage of goods for trade, provided the goods are owned by the pilot, owner or hirer of the aircraft (i.e not just flying random cargo) and that the pilot is not paid then it is a private op. Once you charge for the flight or the pilot gets paid it becomes airwork.
But of course if they used plain english we would have a lot of out of work lawyers.
The earlier paragraph (v) refers to carriage of goods for trade, provided the goods are owned by the pilot, owner or hirer of the aircraft (i.e not just flying random cargo) and that the pilot is not paid then it is a private op. Once you charge for the flight or the pilot gets paid it becomes airwork.
But of course if they used plain english we would have a lot of out of work lawyers.
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paragraph 2 (7)(d)(vi) allows for the carriage of goods for purposes other than trade as a private op i.e flying your new TV home. I think you are reading it as carriage for trade excludes it from a private op, but that is allowed with conditions in the earlier paragraph.
vi - "The carriage of goods otherwise than for the purpose of trade"
Doesn't help your argument there... The purpose is to sell (trade) the fish (cargo).
I always thought if anyone makes money as a result of the flight it becomes airwork / charter.
From your scenario, your friend is making money from the fish (cargo) you are transporting to market.
Private is defined as other than the carriage of goods for the purpose of trade.
Continues on with "The persons on the flight, including the operating crew, share equaly in the costs of the flight."
Therefore this would be a charter operation as you are effectively charging for aircraft cost and transporting goods for trade.
Last edited by NIK320; 1st Feb 2012 at 03:13.
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Happy to stand corrected, but this is how I read this paragraph:
I interpret this as the other than applying to the charge not the goods i.e no charge being made other than the hire of the aircraft (i.e no cargo rates or pilot wages etc). So the carriage of goods for trade is private, as long as the goods are owned by the pilot/owner/hirer and the only charge is for the aircraft hire.
To read it as "carriage other than for trade" the comma would need to shift ie:
"the carriage of persons or the carriage of goods without a charge for the carriage being made, other than the carriage for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft;"
the carriage of persons or the carriage of goods without a charge for the carriage being made other than the carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft;
To read it as "carriage other than for trade" the comma would need to shift ie:
"the carriage of persons or the carriage of goods without a charge for the carriage being made, other than the carriage for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft;"
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That implies write the paragraph yoda did.
The sentence is back to front to make that argument.
carriage is made other than for the purpose of trade.
How can that other than apply to something that was in the first segment of the sentence?
if you apply other than to without a charge.. The opposite is now yes you can charge him for your time.
The sentence is back to front to make that argument.
carriage is made other than for the purpose of trade.
How can that other than apply to something that was in the first segment of the sentence?
if you apply other than to without a charge.. The opposite is now yes you can charge him for your time.
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How is this not totally straightforward?
CAR 7d(IV): the carriage of persons or the carriage of goods without a charge for the carriage being made other than the carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft;
Therefore the carriage of goods, for the purposes of trade, precludes such an operation from being private.
Furthermore...
CAR 206: (viii) carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft (not being a carriage of goods in accordance with fixed schedules to and from fixed terminals);
... clearly states that it's airwork if carrying goods, for the purposes of trade, that are owned by the pilot, owner or hirer. You're carrying the owner's goods (his fish/illegal abalone) for the purposes of trade, therefore it's airwork.
CAR 7d(IV): the carriage of persons or the carriage of goods without a charge for the carriage being made other than the carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft;
Therefore the carriage of goods, for the purposes of trade, precludes such an operation from being private.
Furthermore...
CAR 206: (viii) carriage, for the purposes of trade, of goods being the property of the pilot, the owner or the hirer of the aircraft (not being a carriage of goods in accordance with fixed schedules to and from fixed terminals);
... clearly states that it's airwork if carrying goods, for the purposes of trade, that are owned by the pilot, owner or hirer. You're carrying the owner's goods (his fish/illegal abalone) for the purposes of trade, therefore it's airwork.
It all stinks..... and its not just the fish
This pvt v awk and the "rules" have been argued about before.
And remember
CASA is a "safety" regulator and has no legal foundation to regulate "commerce".
1997 Classification of Operations Policy. Adopted by the Minister and the CASA Board.
"The payment of monies to an aircraft pilot, owner or operator, either to re-imburse him for his expenses, or to allow him to make a profit is possible in ALL classes of operations. (Their hightlight)
"...an operation with a Pvt pilot, with his/ a company aircraft and a "tool box" is allowed.
The last of the many changes announced, but never implimented, re this CoOP dissappeared off the CASA web site in 2003. Bugger. GA shafted again.
You will be delighted to hear that the shiny new GATF/ General Aviation Task Force will be looking at some of the issues re AOCs , 206 and etc....just like all those bloody years ago.
I'll wager it will all drain away with mega dollars, once again into the sands of CASA time.
And now for a modern footnote...
" CAR 206 can properly be described as a section dealing with definitions. It neither empowers or restricts any particular operation."..." it is unlawful as it is based on an expired law, with cross references to a now non-existent Act.
SM E Fice. AATA 181 21 March 2011 Caper p/l et al v CASA.
See, the "legal" CASA fwits that have churned out this "regulatory" ****e are just too smart for their own good.
And the good of the Industry. Many individuals can attest they have been sorely put upon /destroyed by 206.
Even people in CASA couldnt handle it !!. A letter to the CNS Post was written complaining about the carriage of crabs (no ticket, no choice) in a charter aircraft/ CPL and yet in the SAME airspace, (yikes!) you have Pvt pilots being paid to drop skydivers..(paid for a ticket, their choice).
Its not about "safety".. its about "commerce" ( see above) and bodies. Wrongly.
So for 'flying pom'. Just carry the fish. Let the marketer cover the a/c cost, You havent charged for the carriage of.
The act of "trade",ie marketing of the fish, occurs after the flight. See all of the above anyway !
Which brings me the final comment. ALL CASA should be worrying about is that the aircraft has a current MR, pilot has a Licence and current medical, and that the flight was conducted as per the VFR/IFR rules.
And remember
CASA is a "safety" regulator and has no legal foundation to regulate "commerce".1997 Classification of Operations Policy. Adopted by the Minister and the CASA Board.
"The payment of monies to an aircraft pilot, owner or operator, either to re-imburse him for his expenses, or to allow him to make a profit is possible in ALL classes of operations. (Their hightlight)
"...an operation with a Pvt pilot, with his/ a company aircraft and a "tool box" is allowed.
The last of the many changes announced, but never implimented, re this CoOP dissappeared off the CASA web site in 2003. Bugger. GA shafted again.
You will be delighted to hear that the shiny new GATF/ General Aviation Task Force will be looking at some of the issues re AOCs , 206 and etc....just like all those bloody years ago.
I'll wager it will all drain away with mega dollars, once again into the sands of CASA time.
And now for a modern footnote...
" CAR 206 can properly be described as a section dealing with definitions. It neither empowers or restricts any particular operation."..." it is unlawful as it is based on an expired law, with cross references to a now non-existent Act.
SM E Fice. AATA 181 21 March 2011 Caper p/l et al v CASA.
See, the "legal" CASA fwits that have churned out this "regulatory" ****e are just too smart for their own good.
And the good of the Industry. Many individuals can attest they have been sorely put upon /destroyed by 206.
Even people in CASA couldnt handle it !!. A letter to the CNS Post was written complaining about the carriage of crabs (no ticket, no choice) in a charter aircraft/ CPL and yet in the SAME airspace, (yikes!) you have Pvt pilots being paid to drop skydivers..(paid for a ticket, their choice).
Its not about "safety".. its about "commerce" ( see above) and bodies. Wrongly.
So for 'flying pom'. Just carry the fish. Let the marketer cover the a/c cost, You havent charged for the carriage of.
The act of "trade",ie marketing of the fish, occurs after the flight. See all of the above anyway !
Which brings me the final comment. ALL CASA should be worrying about is that the aircraft has a current MR, pilot has a Licence and current medical, and that the flight was conducted as per the VFR/IFR rules.
In reality how you read it will be irrelevant.
It will be up to council for the prosecution and your council to argue the meaning in front of his honor the judge if CASA believes you are operating outside what they interpret as the correct meaning.
It will be up to council for the prosecution and your council to argue the meaning in front of his honor the judge if CASA believes you are operating outside what they interpret as the correct meaning.
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I would suggest if your intention after catching the fish is to sell them then it is a Commercial Operation.
Simple definition, private ops are those you do for you alone, no intent to make any gain from them nor intend to commercialise any thing that is involved, including pax, cost share is just that equal shares for you and the pax, or you cop the majority and a portion is subscribed by the pax, but not as any form of intent nor with pax unknown to you.
206 is very narrow regulation, no wriggle room at all.
Simple definition, private ops are those you do for you alone, no intent to make any gain from them nor intend to commercialise any thing that is involved, including pax, cost share is just that equal shares for you and the pax, or you cop the majority and a portion is subscribed by the pax, but not as any form of intent nor with pax unknown to you.
206 is very narrow regulation, no wriggle room at all.
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If you ask someone from CASA they will always say it is a commercial op so they don't cop it if you are caught or reported.
They have worken on the NO principle for the fifty years I've observed them.
They have worken on the NO principle for the fifty years I've observed them.
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Different FOI's will have different opinions. Your business can fly a director on a private aircraft under a private operation for the purpose of conducting trade (a sales meeting for example), yet you cannot fly "goods" for trade...
You almost need a full time lawyer to conduct any form of aviation, private, business or commercial. That alone is the most common reason why most people I have spoken to will not even try, it simply is to difficult to understand or get a firm answer.
Business Aviation should be thriving in this country, it is a fantastic business tool if you can use it efficiently, unfortunately in most cases CAR 206 prohibits this from happening with absolutely no positive effect on safety.
Realistically does having an AOC make the carriage of fish from A to B any safer than that same operation conducted privately? Nope.
Does it make that operation financially prohibitive? Yes, the cost of compliance would be circa $40k-$50k a year. (chief pilot, aoc issue and costs to maintain this, administration etc.)
It is frustrating because I see so much potential!
You almost need a full time lawyer to conduct any form of aviation, private, business or commercial. That alone is the most common reason why most people I have spoken to will not even try, it simply is to difficult to understand or get a firm answer.
Business Aviation should be thriving in this country, it is a fantastic business tool if you can use it efficiently, unfortunately in most cases CAR 206 prohibits this from happening with absolutely no positive effect on safety.
Realistically does having an AOC make the carriage of fish from A to B any safer than that same operation conducted privately? Nope.
Does it make that operation financially prohibitive? Yes, the cost of compliance would be circa $40k-$50k a year. (chief pilot, aoc issue and costs to maintain this, administration etc.)
It is frustrating because I see so much potential!
