Should EASA introduce "common purpose"?
 

On the thread of the Cardiff football player accident, there is a lot of talk of "grey commercial" flights, where posters suspect "cost sharing claims" are abused for flights against reward.
The FAA allows the same but insists (and where necessary checks) that the pilot and cost sharing passengers have a genuine common purpose, ie they are friends or family on a joint trip.

I think this is a good principle as it will in my opinion prevent PPLs from getting into situations where there are additional pressures to execute a flight in situations of time pressure, weather ambiguity etc.

Therefore I am in favour of EASA introducing and enforcing the requirement of "genuine common purpose" as a requirement in case of cost sharing. I do not think limited financial capacity in enforcing this should be a reason not to do it. It would also align FAA and EASA regulations.

What do you think?

If you seek alignment of regulations regarding "common purpose" perhaps you could cite any FAA part 91 or part 61 regulation that requires common purpose for cost sharing. To the best of my knowledge there is no such regulation. Maybe what you want is for EASA to form an opinion that is aligned with a little known FAA opinion. That falls a long way short of alignment of regulations.

Common purpose is a test for the validity of a cost-shared flight advocated by the FAA in a well known legal opinion, but it doesn't form the basis of regulation. The only real alignment of regulation that one might advocate is for EASA to align to the FAA's requirement that the pilot pays an equal portion of direct operating costs.

Does anyone know why EASA removed the equal shares restriction in the first place?

I thought that most? of the various NAAs had this restriction previously, because it's a fairly obvious way of effectively cutting out a lot of grey areas, while also demonstrating the intent behind the actual laws.

It maybe well known to those who have followed that Cardiff player accident thread but I disagree that it is well known. I have held FAA CPL and CFI ratings for nearly 40 years and had never heard of "common purpose" test for cost sharing before reading about it in that accident thread. I have asked other experienced pilots and they had never heard of it either.

Opinions should have no place in defining the rules pilots are expected to know and comply with. If it is a requirement it should be in the regulations.

Just go back to the previous UK CAA requirements!

Pilot pays at least an equal share of the costs.
No advertising outside the flying club environment.
No more than 4 PoB.

I think that part of the problem with what you are saying EXDAC is that like the UK, the US legal system is based on common law. This means that the regulations, on which you base your point, are themselves based on a number of common law definitions. For example, you will not find in the FARs a definition of Common and Private Carriage. These are terms that are fundamental to the privileges of US pilot licences, but they are common law terms that are simply inherited in regulation rather than being re-defined. The FAA was forced to publish FAA Advisory Circular 120–12A in 1986 because so many people were confused about the terms.

The Common Purpose Test, as it is known is also derived from common law - which is why you don't find it in the regulations. The fact it is not explicitly in the regulations, does not make it any less part of the law. This point is made well in the ruling FLYTENOW vs FAA should you be interested (available online in a variety of places).

Je n'ai aucune idée. C’était peut-être un peu gênant pour les aéroclubs d’un grand pays centre-ouest? :)

Common purpose is not supported by the safety case.* Do I feel more pressure to complete a flight if you have to get to an important meeting than if both of us have to get to an important meeting?* I could easily envisage a change in the rules to equal shares, however.

Couldn't a similar safety case argument about cost share be made? *Do I feel more pressure to complete the flight if it costs me £30 instead of £60?*

I don't think it is that particular flavour of safety case that is imagined here. The FAA in applying the regulations they do are seeking to avoid private pilots performing flights that might otherwise require commercially licensed pilots. They, I presume, believe that such flights offered to the public by commercially licensed pilots operating under Part 135 (or similar) is safer than flights being offered by PPLs.

Indeed it's fundamental to the case for cost-sharing that the marginal cost of doing the flight vs cancelling it is positive. If you cancel you save money. By contrast, a commercial operator loses money (the margin he would have made, over and above the direct cost) if he cancels a flight, hence extra regulation is required for commercial beyond what is required for a purely private or cost-sharing flight. (That's not the only reason for regulating CAT more strictly than private flights, but it's one of them).

As I work for a large French institution, I can confirm that tendancy to burn the rest of the world down, rather than give ground on a trivial issue that could otherwise be easily worked around*:{

*

And that's the other aspect. There is an expectation of the level of safety offered by commercial air transport.

While a consenting adult should be permitted to make a choice as to whether they wish to be exposed to a particular level of risk, they need to have a way of knowing what that level of risk is. Otherwise we would just ban aviation for GA pilots and passengers alike unless we could reach the standards of the airlines. As long as the passenger knows what they're getting themselves into, they should be permitted to choose to take the risk, just as the pilot does.

But the expectation that operations under Part 135 (or for that matter an EASA AOC for single pilot ops in a light aircraft) radically transform safety is somewhat illusory. Here are the scores on the doors for 2002-2017 from the NTSB:

Part-121 scheduled: 0.03 fatal accidents per million flight hours
Part-121 non-scheduled: 0.96 fatal accidents per million flight hours
Part-135 commuter: 1.54 fatal accidents per million flight hours
Part-135 on-demand: 3.6 fatal accidents per million flight hours
GA (Part-91): 12.3 fatal accidents per million flight hours

So Part-135 on demand is 100 times less safe than Part-121 scheduled, but a factor of 3-4 safer than GA.

One could argue that the factor of 3-4 is worth having, but do we really believe that passengers boarding a Part-135 on demand flight know they're 100 times more likely to be involved in a fatal accident than on an airliner?

Lots of scope for playing with the NTSB's statistics as I know you are well aware. The gap changes if one takes into account the number of fatalities as opposed to the number of fatal accidents, for example.

Probably a little off topic though.

Advertised cost-sharing is illegal in US-registered aircraft regardless of the licence under which the flight is operated. This eliminates common purpose from the argument.

As a passenger boarding an aircraft, I care only about the likelihood of me surviving the journey. If I die, I don't care how many people die with me.

If you start to consider the effect of aircraft size, the gap actually widens: if I'm one of 100 pax on an airliner on which one person dies, I've still been involved in a fatal accident, even though I have a 99% chance of surviving that fatal accident. My chances of surviving a "fatal accident" (an accident in which at least one person died) in a Lance or Twin Comanche are rather worse.

Or put another way, if you want to look at total fatalities in the numerator, the correct denominator is not flight-hours but passenger-flight-hours. Either way you cut it, GA looks worse not better.

If you look at the rates per mile rather than per hour, GA again looks worse because it's slower.

Only if you look at the rates per flight is there a little solace for GA, because our flights tend to be shorter on average than the 1.8 hours of a Part-121 scheduled carrier. Per flight, we may well be only 100 times more at risk than an airliner, compared to 400 times more at risk if you count hours.

Which is why you are less interested in number of fatal accidents (ie accidents in which at least one fatality occurs), and you are concerned about the total number of fatalities per unit of measurement.

But either way, this is considerable drift from the question posed by the OP.

My issue is not that "common purpose" is not defined, rather that the regulations on cost sharing do not say that a common purpose test should be applied. How would anyone familiar with Section 61.113 know that a common purpose test is required? Yodice used to write legal commentary for AOPA Pilot magazine. In the below referenced article on cost sharing he makes no mention of common purpose. He only says that the pilot should have a purpose for making the flight other than carrying the cost sharing passenger. That would seem to imply that, back in 1992, the common purpose test was not well known.

http://cospilot.com/documents/Pilot%...20expenses.pdf

Thanks for the references though. That case makes a very interesting read.

I would say that in those few words, he pretty much nails a key aspect of the common purpose test. The flight had better not be for the sole purpose of taking the passenger to the destination.

Common Purpose as a test predates air travel, and owes its origins to much earlier forms of transport. It perhaps merits an AC in the same way as the 1986 example I gave above.

I agree. However, that seems quite different from the position that the pilot and passenger must have the same (or common) purpose for making the flight.

Unfortunately, as with all things legalese, Common Purpose doesn't quite mean what you are attempting to make it mean.

Common purpose does not mean that both parties to a flight are both going to the same place for the same reason. It simply means that both parties would be going to the destination for their own reasons - their purposes are aligned. In other words, in the context of pilots and flying, the pilot needs to have been going to go to the destination in any case - and is not merely flying there for the purposes of conveying the passenger. Pretty much exactly what Yodice wrote.

I can't find the link now but it was referenced in the Cardiff thread. In that link, which I think represented an FAA opinion, it was stated that, if a pilot flew from A to B with a passenger, then the pilot had breakfast at B but the passenger attended a business meeting at B, then the flight was not a legitimate cost sharing flight because the pilot and passenger did not have the same reason for making the flight. Perhaps someone with a better memory than me can point us to that reference.

EXDAC: You might want to take a look at a more current AOPA article written by a different Yodice, in which Common Purpose is defined as the desire to travel to the same destination:

https://www.aopa.org/news-and-media/...legal-briefing

Thanks. I also found this link to be informative - https://www.faa.gov/about/office_org...bSubmit=Search

I now think it's clear that FAA does not intend common purpose to mean that pilot and cost sharing passengers all have to have the same reason for flying to the destination. It's frustrating that I can't find the reference that seemed to imply that. Not a wasted effort though. I now have a new subject to discuss when I next give a flight review.

Here's a question.

Is it illegal to advertise as an FAA PPL in a US reg airplane a flight if the amount of cost to be shared is zero?

There are four tests for common carriage, and advertising a flight in the manner described satisfies three of those tests. The only test that your scenario does not satisfy is 'compensation'. If you are genuinely receiving no form of compensation, financial or otherwise, directly or otherwise as a result of the flight, then you are not in violation, but you might reasonably expect plenty of scrutiny.

All this talk about strict appliance of no compensation an common purpose, makes me wonder how many here in their PPL/hour building time did "illegal" flights.
I would guess a high percentage if not almost all.

Introducing 'EASA common purpose' will only do one thing, add bureaucracy for the good ones while the bad ones will give a sh#t anyways no matter what paper says. No, there is no sense in it at all other than uncover we are all unable to live common sense. Seriously, if we look at this incident - how would some paper tiger even change a little bit on that behavior? Regulations are for those who are willing to follow them, the others are unreachable by that.

I dislike this "common purpose" concept and I hope it will never find its way in EASA world.
It's a can of worms.

I want to be able to legally fly my daughter to her home in Great Britain even though I have no other interest in going there but letting her reach her destination. Same thing with a friend who would ask me to drop him/her in a place where he/she wants to go.
Of course, I don't ask any payment from them and I make sure they know and agree that I can cancel the flight until the last minute before departure.
If someone introduces "common purpose" in Europe, it will put those flights in a grey area.

However, I totally agree with the proposal that, in case of cost sharing, the pilot must at least bear a pro-rata part of the direct costs.
The only way to put commercial flying with a PPL licence to a stop is to ensure that the pilot looses money when doing such a flight.

To limit the pernicious effect of internet sites like Wingly, it would suffice to state that publicity for cost-sharing flights is only allowed if the destination and date/time of the flight is pre-decided by the pilot and indicated in the advertisement. Any internet site that tolerates advertisements breaking this rule would be fined.

With respect, you've misunderstood the concept of common purpose. Common purpose is only a consideration where there is a cost sharing arrangement (or where the pilot is receiving some compensation in connection with the flight). When you say "Of course, I don't ask any payment from them", common purpose ceases to have any impact on such flights, and it certainly doesn't put them into a grey area.

"The only test that your scenario does not satisfy is 'compensation'"

The FAA and NTSB Board both view the accrual of flight time as compensation when considering whether an operation in common carriage occurred or is likely to occur.

See Administrator v. Blackburn, 4 NTSB 409 (1982) affirmed in Blackburn v. NTSB, 709 F.2d 1514 (9th Cir. 1983), Administrator v. Mims, 7 NTSB 850 (1991), Administrator v. Wagner, NTSB Order No. EA-4081 (1994), Administrator v. Murray, NTSB Order No. EA-5061 (2003), Administrator v. Clair Aero, Inc., NTSB Order No. EA-5181 (2005), Administrator v. Wallace, NTSB Order No. EA-5461 (2009).

See also Memo (May 1982) from Bernard Geier, Chief, General Aviation and Commercial Division, to Chief, Flight Standards Division; and the memo (18 May 2009) to Don Bobertz, Attorney, Office of the Regional Counsel Western Pacific Region, AWP-007 from Rebecca B. MacPherson, Assistant Chief Counsel for Regulations, AGC-200.

See also interpretations from the Office of the Chief Counsel for FAA to Judy Lincoln (30 Oct 1990) and to John W Harrington (23 Oct 1997).

All true Selfie, but in the question posed to us, the assumption is that the costs of the flight will be met by the pilot in full. That does not meet the hurdle for compensation.

The operator bearing the cost of the operation is not a sufficient defence.

Administrator v. Wallace, NTSB Order No. EA-5461 (2009):

So, it's a can of worms that'd better stay closed in EASA land.

And speaking about compensation, I often have been invited for a meal by a friend I had flown earlier. Of course I didn't do the flight for the meal. But if I have to have second thoughts before accepting the invitation because of legalities, it's gonna be a really pissing legal framework.

The FAA Common Purpose rule didn't help Ibbotson or Sala.

Fortunately most pilots can be trusted to conform their behaviour to the rule of law.

Those that don't often pay for it. Is it a reason to make ever more draconian laws? Wont stop the lawbreakers.

... and no more helping the fellow pilot from next stand in your hangar if his aircraft has to stay unplanned at the shop and we now simply fly there and get him back home ... do you really want that? We are a rather large group of pilots at my place and it is a real airmen environment. We help each other and I want that to stay. So, if one is bringing his plane to the shop and needs a lift back home, I want to be able to do that, even if I have no bloody 'common purpose'. I am pretty sure we find enough examples were this would be BS and my life experience - you never ever get this covered by 'regulations'. Oh, and I do prefer to live in a reality, not some theoretical bubble of digital dictators.

The common-purpose rule has no relevance to flights offered to the public on a compensation basis. These flights are common-carriage operations are subject to 14 CFR 119, making a requirement for an air operator certificate among others, and 14 CFR 135 or 121.

The common-purpose rule is only relevant to operations excluded or exempted by 14 CFR 119 and the pilot acts under a US pilot certificate. A relevant example is a cost-shared flight which is not advertised to the public. Advertising in online closed groups may be regarded as advertising to the public. See interpretation given 3 Oct 2011 to Haberkorn.

In an interpretation given 21 May 2014 to Andy Dobis: "It is important to note, however, that the privileges and limitations conferred upon pilots are a separate and distinct issue from whether these flights would be considered a commercial operation for a part 119 air carrier or commercial operator certificate is required."

In the appellate decision made 18 Dec 2015 in Flytenow Inc. vs. Federal Aviation Administration (link): "The common-purpose test has no bearing on whether compensation in the form of passengers' expense sharing, together with holding out to the general public, tends to show that a private pilot is operating as a common carrier."

ChickenHouse, if the common-purpose test is not passed and there is compensation in respect of a non-advertised flight then it is probably a private carriage operation. See 14 CFR 119.23(b).