Meanings of Commercial Air Transport and Aerial Work
The general rules relating to commercial air transport and aerial work are defined in article 195 and 126 of the Order. Seven exceptions to those general rules are then established in articles 196 to 202.
2.1 Aerial Work (Article 126(1))
A flight is for the purpose of aerial work if payment or valuable consideration is given or promised in respect of the flight or for the purpose of the flight, unless the flight is in fact for the purpose of commercial air transport (see 2.2 below).
Under article 126(2), if the only payment involved is the payment to the pilot, the flight is deemed to be private for airworthiness purposes, although it will still be aerial work for other purposes, e.g. flight crew licensing. This enables a private aircraft owner to pay a flying instructor for a flying lesson in his own aircraft.
2.2 Commercial air transport (Article 195(1))
Commercial air transport flights comprise one major category and two other categories.
The major category is relatively straightforward; and is when payment is made directly for the carriage of passengers or cargo in the aircraft on the flight.
The second category is when passengers or cargo are carried gratuitously, i.e. for no payment, by an air transport undertaking. An air transport undertaking is defined in article 3 as “an undertaking whose business includes the undertaking of flights for the purposes of commercial air transport of passengers or cargo”. An AOC holder is almost bound to be an air transport undertaking. Any flight operated by such an undertaking for the carriage of passengers or cargo is a commercial air transport flight, whether or not payment is made.
Note: There is an exception in this second category for carriage of employees of the undertaking and authorised persons making inspections or carrying out tests (i.e. such persons can be carried without the flight being deemed to be commercial air transport).
The third category of commercial air transport flight relates only to airworthiness. If an aircraft is hired for a flight, e.g. from a flying club, that flight is deemed to be commercial air transport for airworthiness purposes, i.e. the aircraft must have a certificate of airworthiness and be equipped and configured to commercial air transport requirements. The flight will be private for all other purposes, provided that no other payments are made in relation to the flight.
2.3 Definitions of persons carried (article 3)
Passenger means a person other than a member of the crew.
Crew means any person carried in an aircraft who is:
(a) a member of the flight crew;
(b) a person carried on the flight deck who is assigned by the operator of the aircraft to give or to supervise the training, experience, practice and periodical tests required for the flight crew under article 99(2) of this Order;
(c) a member of the cabin crew; or
(d) a task specialist who is assigned by the operator to perform specialised tasks on board or from the aircraft.
Task specialist means a person assigned by the operator or a third party, or acting as an undertaking, who:
(a) performs tasks on the ground directly associated with a specialised task; or
(b) performs specialised tasks on board or from the aircraft.
From a legal point of view, task specialists are either crew members or passengers. In accordance with the definition of ‘Crew’, a task specialist who is assigned by the operator to perform specialised tasks on board or from the aircraft is a member of the crew. If not assigned by the operator to perform specialised tasks on board or from the aircraft (for example a ground worker associated with a specialised task), a task specialist is a passenger.