1.1 This Circular is intended to increase awareness and understanding of legislation as it relates to commercial air transport.
1.2 There is often a general perception that if an aircraft is carrying passengers who are not making any payment this constitutes a private flight and is not subject to any of the requirements in the Air Navigation (Overseas Territories) Order 2013 (“the Order”) relating to commercial air transport. This is far from being the case, particularly if the aircraft concerned is normally operated under an Air Operator Certificate (AOC) and/or under the control of an air transport undertaking.
1.3 The distinction between commercial air transport and private aviation is based on expectations and the ability to accept risk. Where a person is in substance paying another to carry him as a passenger on that aircraft, he is entitled to expect the highest standards. The law provides for this by requiring the operator to have an AOC and to comply with the relevant commercial air transport requirements.
1.4 An individual is entitled to take risks that he can understand and appreciate. These principles are reflected in aviation law by focusing on the pilot and the operator. It is the pilot and the operator who can be taken to understand the risks associated with a flight; the passenger may not.
1.5 If someone, who does not hold an AOC, uses their own aircraft to take some friends for a free ride then such a flight may be considered to be private. It is possible even for those passengers to contribute to the actual costs of the flight under certain circumstances without it becoming a commercial transport flight (see 4.2 Exception 3 below). However, the situation is complex and each case merits careful consideration.
1.6 This Circular contains a summary of the law; it is the text of the legislation that must be relied upon and only a Court can provide an authoritative interpretation.