Ferry flight a commercial op?

On 2007-11-13 19:25:30 -0800, buttman said:

On Nov 13, 5:53 pm, "Steven P. McNicoll"
wrote:
Something like ten years ago, maybe more, there was a case that involved a
skydiving club. One of the members was also a private pilot and volunteered
to fly the jump plane. He thought it a great way to build free time towards
his commercial. Since he was using the time towards another rating it was
deemed to be compensation since he'd otherwise have to pay for it and the
flights were a commercial operation.


http://www.ntsb.gov/alj/O_n_O/docs/AVIATION/4583.pdf

this case?

If so, in that case, the pilot was in the wrong because he was flying
passengers who had paid to be there.

He was, but (just to be clear about this) it is not because he was
violating the rules for common carriage. See part 119.1:

§Â*119.1Â*Â*Â*Applicability.
...
(e) Except for operations when common carriage is not involved
conducted with airplanes having a passenger-seat configuration of 20
seats or more, excluding any required crewmember seat, or a payload
capacity of 6,000 pounds or more, this part does not apply to—
...
(6) Nonstop flights conducted within a 25-statute-mile radius of the
airport of takeoff carrying persons or objects for the purpose of
conducting intentional parachute operations.
So, it is not a question of whether he was carrying passengers as a
common carrier. It is a question of whether he was piloting an aircraft
and carrying passengers for compensation in violation of the privileges
and limitations of a private pilot certificate. The FAA said being
allowed to fly an aircraft for free was a form of compensation. The
problem I really have with this ruling (and the reason I brought this
subject up in the first place) was the Administrator's insistence that
a private pilot sharing expenses with his passengers must have a
'common purpose' with them for the flight. This is clearly wrong. You
almost get the impression that if the pilot had jumped out of the plane
along with the skydivers that the FAA would have been okay with that,
because then he would have shared enough 'common purpose' with the
skydivers to meet the 'shared expenses' rule (provided he had paid his
share of the expenses). Because he did not jump out of the plane, there
was no 'common purpose' with the skydivers. This is bogus, as the FARs
make no mention at all of the need for a 'common purpose' when sharing
expenses. See part 61.113 -- no mention of 'common purpose' at all:

§Â*61.113Â*Â*Â*Private pilot privileges and limitations: Pilot in command.
(a) Except as provided in paragraphs (b) through (g) of this section,
no person who holds a private pilot certificate may act as pilot in
command of an aircraft that is carrying passengers or property for
compensation or hire; nor may that person, for compensation or hire,
act as pilot in command of an aircraft.
(b) A private pilot may, for compensation or hire, act as pilot in
command of an aircraft in connection with any business or employment if:
(1) The flight is only incidental to that business or employment; and
(2) The aircraft does not carry passengers or property for compensation
or hire.
(c) A private pilot may not pay less than the pro rata share of the
operating expenses of a flight with passengers, provided the expenses
involve only fuel, oil, airport expenditures, or rental fees.

I think it is clear that this was an obvious example of someone
attempting to circumvent the FARs governing commercial flight.
Unfortunately, this forced the FAA to adopt a position that adversely
affects private pilots engaged in ordinary activity. All it takes is
one guy to try to find a loophole, and the FAA will have to plug up the
loophole with a plug that blocks hundreds or even thousands of pilots
who are engaging in an activity that was formerly considered
legitimate. The 'common purpose' test is clearly out of bounds and
should only be used in cases of questions of common carriage. In this
case, the skydiving operation was clearly 'holding out' without having
to resort to any sort of 'common purpose' test. They were advertising
in the Yellow Pages, after all, which is how the pilot found them. But,
even though they were 'holding out,' they were still within the
exception of part 119.1(e)(3), so the issue of 'common purpose' should
never have come up at all.

--
Waddling Eagle
World Famous Flight Instructor