Shawn

Did you check out our vote post on FAR Part 91 vs. Part 135 commercial operations?

The Scenario

The scenario starts simple - you're a commercial pilot and flight instructor with a university. You teach in the school's King Air, but occasionally ferry the university staff around on trips - under Part 91. The school doesn't have a Part 135 operating certificate.

The president's office asks you to fly to Great Falls, Montana and pick up a donor. You'll fly him to Cheyenne, Wyoming for a hunting trip, and then bring him back to Great Falls.

The trip doesn't have anything to do with the university, and no-one from the university is traveling with. The donor isn't paying anything for the flight.

So, can you operate the flight under Part 91, or do you need to conduct the flight under FAR Part 135?

At last count, 145 voters said you can fly it under Part 91, and 113 said you need to fly under Part 135.

We're not lawyers, and we're not the FAA's general counsel - so we can't give you a definite answer. But, we did contact the FAA and researched the issue. Here's what we found.

What We Found

This trip - most likely - should be flown under FAR Part 135.

At issue is the question of "common carriage." Common carriage is reserved for FAR Part 135 and FAR Part 121 operators - air taxi and scheduled air carriers. It requires additional oversight and operating limitations over FAR Part 91. But, what is common carriage?

What Is Common Carriage?

First of all, you won't find the term in the FARs. "Common carriage" is a common law term, used universally - not just in aviation. It's determined by jurisprudence and the courts - by case history. The FAA has not narrowed the definition in the FARs, so common law takes effect.

So, what is common carriage? The National Business Aircraft Association (NBAA) gives us a great explanation. Four elements define a common carrier: (1) A holding out of a willingness to (2) transport persons or property (3) from place to place (4) for compensation. Let's apply this to our flight:

1) A Holding Out

What is "holding out?" You could call it advertising - but that's actually too narrow of a definition. "Holding out" means the general public knows you're willing to take a job. A reputation to take passengers on personal trips is good enough for holding out. Don't believe me? Check the FAA's AC 120-12A, Paragraph C.

2 & 3) Transport Persons Or Property From Place To Place

Pretty clear here - you're transporting the donor from Great Falls to Cheyenne and back.

4) For Compensation

Another grey area. Is the university getting compensated? What is compensation - is it just money? No. It's something of value. And, the courts have determined that goodwill is of value. (Check out that NBAA presentation.) So, if the university is making the flight to build goodwill with the donor, hoping to get more donations down the road, that's compensation.

Tying It Up

Ok, let's tie this all together. You definitely meet parts two and three - carrying someone from place to place. The question of parts one and four is more grey. Are you holding out - does the university have a reputation for transporting donors, or do donors expect this service? And, is the university compensated - are you building goodwill between the university and the donor?

The university isn't using the flight for a university activity - it doesn't fall under the proper management of corporate resources. And, even if a university staff member went with, are they conducting business on the trip? Is it a university function, or are they there simply to "make the trip legal?"

It's too grey for me. I'd take the safe side and say the trip needs to operate under FAR Part 135. If the trip really needed to happen, I'd request an interpretation from the FAA's counsel.

And, your certificates are on the line here, not the university's. More of a reason to play it safe.