Can a PPL do it?

[Captain]

Untrue story I heard about happening somewhere else.

Bobs Shack of Soaring runs a 135 operation all over the US moving anyone who will pay. One day one of there planes departs a small airport and the pilot leaves the planes logbook behind. The plane is grounded until its return, but the crew is out of duty time to get a car and drive the 200 miles or so to retrieve the logbook.

So, the company (BSS) calls the FBO where the logbook is left. Johnny answers the phone and sure enough the logbook is right there. BSS asks Johnny if he can deliver the logbook as there is no other curriour service in the town.

Johnny says he has school tomorrow but could probably fit it in if he flew a C-172 he has access to. Company (BSS) says that's fine and would be willing to pay for whatever cost Johnny incurrs as its vital they get that logbook to their plane by tomorrow morning when they have a VIP flight scheduled.

Johnny doesn't know. Wants to ask the FBO boss. BSS says that's fine but doesn't think the boss will ever agree as he'll be motivated to use his own charter service for massive profit with the late call out fees and all.

BSS is fine with Johnny driving it over. 4 hours from now is just as good as 2 hours. BSS does not care. As incentive BSS offers Johnny payment to drive his car over equal to the cost of whatever the C-172 rental would have been.

So, here's the question:

Can Johnny drive his car and accept payment related to the Cessna rental? Can Johnny elect to fly instead? Remember, BSS doesn't care one way or the other. If he can't fly why not? It's totally his choice to save time for himself as he has school the next day.

Discuss.

 

[Jim Logajan]

It's a nice thought, but the ALJ would be unable to hear it in court over the cacophony of quacking.

"We also know, from a decision included in the parties' Supplemental Joint Appendix, that in 1992 an administrative law judge rejected the FAA's attempt to sanction an Alaskan guide pilot in a situation comparable to that in Marshall. Cecil V. Humble, a guide, a pilot and the manager of the Rainy Pass fishing and hunting lodge in Alaska, sold a hunting package to two men, who were accompanied by their wives. After staying at the lodge for a few days, the wives decided to leave before the hunt ended. Humble, who did not have part 135 credentials, flew them back to Anchorage. Citing a Civil Aeronautics Board pronouncement but not the decision in Marshall, the ALJ ruled that the flight was merely "incidental" to Humble's business, "simply an adjunct to the hunting package for which they had contracted," and therefore Humble did not need to comply with part 135. Supp. Joint App. 235."
Hard to reconcile that ALJ's decision and interpretation with your self-amused view. However, you have in the past shown no indication you were ever aware of Administrator v. Marshall (1963) or how the judge in Alaska Professional Hunters ***'n, Inc. v. FAA (1999) noted that the FAA had in fact for over 30 years allowed private pilots in certain circumstances to cover their entire flight costs from passenger payments.

 

[Jim Logajan]

You should read the full case, including the CAB pronouncement. The case you cite was strictly limited to hunting guides in Alaska. In all other cases (such as Administrator v. Murray, cited above), the inclusion of air transportation as part of a package deal was ruled a commercial operation requiring a 135 certificate or better by whoever provides the air transportation. Just ask Carnival cruise lines about how they operate their own airline -- it ain't Part 91.

In addition, the FAA has never allowed private pilots to cover their entire flight costs from passenger payments. At best, only during a 91.146 flight may the direct costs of a flight with passengers be reimbursed (and only by the charity, not by the passengers), and outside of the very limited confines of those 91.146 charity flights, the pilot must pay his/her own pro rata share of the direct costs and cannot collect that portion from the passengers. Also, the indirect costs must always be borne by the private pilot. So, there are no circumstances where a Private Pilot may recover "their entire flight costs from passenger payments."

I'm not sure where you get the idea that it was strictly limited to guides in Alaska. That would be ludicrous. The Alaska Prof. Hunters judge effectively deconstructed the reasoning in Marshall and noted its scope. That judge wrote:


"The Civil Aeronautics Board, adopting the hearing examiner's opinion as its own, ruled that Marshall's flight with the hunter in search of polar bear was "merely incidental" to his guiding business, in part because he had not billed for it separately."
You may claim what you like, but the facts as laid out in Alaska Prof. Hunters appear to me unequivically contrary to your narrow view.

In your view, if someone booked a night's stay at Minam Lodge in Oregon, which can only be reached by hiking in or flying, and a private pilot owner flew out to pick the guest up, the pilot would be in violation of the regs. But I see no reason why the ruling of Marshall would not apply, even though it does not involve Alaskan hunting guides.

 

[Jim Logajan]

If that is a hunting lodge providing the services described in the CAB memo, it might apply. Otherwise, it doesn't, and the FAA has made that clear repeatedly over the years. And there is absolutely no way this would apply to the case at hand.

The FAA lost the Alaska Prof. case precisely because it had not been consistently clear in its interpretation of its own regulations or application of case law.

Whether the lodges involved are for hunting or not appears (to me) to be about as material as the color of the airplanes involved.

Anyone interested in reading the somewhat infamous Alaska Prof. Hunters ruling can find the judge's opinion here, then judge for yourselves whether the interpretation used by the Alaska Region was based on some general principles that might be applied to variants of this hypothetical situation (keeping in mind that the regulations have changed since 1999):
http://scholar.google.com/scholar_case?q=cecil+humble+rainy+pass&hl=en&as_sdt=2,14&case=11524765852581158083&scilh=0

 

[Jim Logajan]

The thing that didn't seem kosher to me was that they waived the rental cost for the 172 in return for the student flying out there to fetch the CFI and the other student.

Sounds like a possible violation of 61.89(a)(3):

§61.89 - General limitations.
(a) A student pilot may not act as pilot in command of an aircraft:
(1) That is carrying a passenger;
(2) That is carrying property for compensation or hire;
(3) For compensation or hire;
(4) In furtherance of a business;
With the CFI along on the return flight instructing can take place, so (1) is unlikely to apply. No property is being carried as such in either direction, so far as I can see, so (2) doesn't seem applicable.. It isn't the student's business, which I believe is the intent of (4). So that leaves (3).

 

[Jim Logajan]

Sounds like (4) to me. Furtherance of A business.

Doesn't say the students business. I'd say the flight school was furthering their business by moving equipment into position.

I think the FAA intended (4) to mean a business the student already had a financial interest in. Such as being a doctor who decides to travel solo somewhere to perform medicine.

The reason I believe (4) was intended to include only student businesses is because every time a student rents an airplane or a CFI the student is furthering the business of the FBO or CFI. Even though the student is paying! This is the literal construction of the regulations. There being no exclusion in the regulation concerning those classes of businesses, every student would find themselves in violation of clause (4).

But they used "a business" where they should have used a phrase such as "a business in which the student has any picuniary interest."

I don't think the people within the FAA who write and review their regulations are particularly bright or think very far ahead. Historically they've shown a lot of legal ineptness. Maybe it is because they really want to exert more control than they are willing to expose to the world in their published regulations. All in my humble opinion.

 

[Jim Logajan]

Is not the airplane itself the property being carried, in violation of (2)?

-Rich

Not in this scenario.