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To share or not to share?

In recent years, numerous private pilots in the USA and Europe have been able to offer cost-shared flights to passengers through ridesharing websites such as Flytenow, Wingly or Skyüber. While this practice has now been banned in the USA, Europe continues to tolerate it. So, who is right? Aviation lawyer Philippe Renz examines the current situation.

 

Private aircraft ridesharing, which uses a similar business model to products such as Uber or Airbnb, brings pilots of small aircraft and passengers together via the internet. This system allows the pilots to finance part of their flights by sharing their costs with passengers willing to travel at reasonable prices. However, many civil aviation authorities doubt today the legality of this practice, which could be compared with commercial air transport activity that only the holders of an air operator certificate (AOC) are allowed to carry out.

In December 2015, a US Court of Appeals confirmed the interpretation and ruling of the Federal Aviation Administration (FAA) that Flytenow cannot provide flight-sharing services to the public. The court has agreed with the FAA that offering expense-sharing services to a wide audience on the internet creates the risk that unsuspecting passengers, under the impression that the service and its pilots lawfully offer common carriage, will contract with pilots who in fact lack the experience and credentials of commercial pilots.

The situation is different in Europe. In 2014, the European Aviation Safety Agency (EASA) decided to give to private pilots of non-complex aircraft the opportunity to apply the non-commercial operations rules to their cost-shared flights, even when those flights are considered as commercial operation due to the fact that remuneration is involved. Thus, European private pilots can advertise their flights to the public privately or through ridesharing websites. This decision was made to allow European private pilots to finance part of their flight hours, which are becoming more and more expensive over the years, so that the pool of commercial pilots remains sufficient for the future.

This decision is today being debated in several European countries, in particular France, where the aviation authority apparently wants ridesharing sites — and not the pilots who are the effective operators — to hold an AOC. As the debate is just beginning, it is time that the EASA takes the situation in hand to achieve a unified and reasonable practice throughout Europe.

So, who is right? The US practice protects unsuspecting passengers but appears too restrictive because it hinders the rights of passengers understanding and agreeing with the operational standards and insurance conditions of cost-shared flights. For its part, if the European regulation respects these passengers’ rights, it does not legally allow authorities to ensure that the passengers have reliably understood and accepted the conditions of the non-commercial flight.

While there is no doubt that the protection of unsuspecting passengers or their safety must be the number one priority, we are currently far from a global consensus on what should be considered as commercial air transport and under what requirements passengers can book on-line cost-shared flights. This situation is mainly due to the ICAO definition of “commercial air transport”, which no longer covers all possible operations in the various aviation sectors, leading to many uncertainties, abuses and many different practices by civil aviation authorities worldwide. It is time for the ICAO to revise, or at least better explain, the interpretation of this definition to provide a better standardization globally.

In the meantime, the one thing is certain: the operator, the pilot and the passenger must take their precautions when flying aboard an airplane that is not an airliner. Indeed, in the case of an accident and if the flight is conducted in violation of the commercial rules, is it likely that the insurers will refuse to pay out damages, which means that neither the operator, the pilot, the passenger nor their relatives will be covered.

About the author
Philippe Renz is a Swiss attorney-at-law with Renz & Partners, a boutique law firm specializing in aviation. Before founding the firm, Renz practiced for several years as a lawyer and prosecutor at the Federal Office of Civil Aviation of Switzerland, then in aviation law firms in London and Geneva. Renz specializes in aviation regulation and litigation.

February 15, 2016

 

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