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Say Olive Oyl owns an RV and wants to hire Popeye, a commercial pilot, to fly her to the beach in her aircraft, which has an experimental certificate. May Popeye legally accept compensation for this flight?

One might hastily conclude that the prohibition in FAR 91.319(a)(2) applies

§ 91.319 Aircraft having experimental certificates: Operating limitations.

(a) No person may operate an aircraft that has an experimental certificate —

     (1) For other than the purpose for which the certificate was issued; or

     (2) Carrying persons or property for compensation or hire.

but at least paragraphs (e), (f), (g), and (h) of the same section make exceptions that allow for-hire use. Well known for-hire uses in experimentals include ferry flights, instruction, test flights, aerial survey, and acceptance flights.

“Operate” and related terms have technical definitions in this context, provided in FAR 1.1.

Commercial operator means a person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property, other than as an air carrier or foreign air carrier or under the authority of Part 375 of this title. Where it is doubtful that an operation is for “compensation or hire,” the test applied is whether the carriage by air is merely incidental to the person's other business or is, in itself, a major enterprise for profit.

Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in § 91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise).

Operational control, with respect to a flight, means the exercise of authority over initiating, conducting or terminating a flight.

In the scenario above, are both Olive Oyl and Popeye operating the aircraft simultaneously? Who has operational control?

Interpretation of FAA regulations seems heavily weighted in favor of protecting the ignorant public from the general risks of flying and especially from unseemly outfits who may find irresistible the temptation to cut corners. Owners and those who otherwise provide the aircraft that will carry them or their property have different incentives and receive different treatment, cf. FAR 91.319(e)(2) and FAR 91.319(g).

If Olive Oyl asserts that she is not running a commercial operation and is paying Popeye for his services, do they have a legal leg to stand on?

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  • $\begingroup$ Is Olive Oyl a pilot as well? Who's PIC? (This could get really interesting if you were talking about something bigger that required 2 crew, and Olive hired Popeye to fill the other seat...) $\endgroup$
    – UnrecognizedFallingObject
    Feb 23, 2017 at 4:28

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This one seems pretty straightforward to me. 91.319(a)(2) applies (because in the scenario you have described the pilot would be carrying persons - Olive - for compensation or hire).

Popeye could accept compensation to reposition the aircraft (with no passengers or cargo onboard) as a ferry pilot, but not to operate the aircraft for the purposes of transporting persons or property (besides the aircraft itself and the incidental things it might carry like extra oil) - even if the person happens to be the owner of the aircraft.

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  • $\begingroup$ Would the same rules apply if the plane was going to land at essentially the same place as where it took off, and the purpose of the flight was to allow the owner of the plane to monitor its behavior (e.g. if something in the plane rattled annoyingly while it was in the air, but the problem couldn't be identified on the ground, trying to locate the problem while someone else flew the plane would likely be much safer than trying to locate the problem while flying it). $\endgroup$
    – supercat
    Feb 15 at 17:17
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In the scenario above, are both Olive Oyl and Popeye operating the aircraft simultaneously? Who has operational control?

Yes, technically both are "operating" the aircraft, one as the owner, and the other as the pilot. Operational control however resides with the pilot as they are the one with the responsibility and authority to initiate, conduct, and terminate a flight.

If Olive Oyl asserts that she is not running a commercial operation and is paying Popeye for his services, do they have a legal leg to stand on?

Olive here is not the one running the commercial operation, the pilot is. They are offering a service (passenger transport for hire in your aircraft), which, because the aircraft that Olive owns being an experimental, is not allowed under FAR 91.319. The pilot, being responsible for the adherence to the FAR's being a pilot, will receive the enforcement action for violating the FAR.

It is pretty cut and dried, 91.319 prohibits using an experimental category aircraft for compensation or hire for the purpose of transporting a passenger, regardless of who owns the aircraft. Additionally, if you are looking for technicalities for a loop-hole, you will find that judges will more often than not uphold the "spirit" of the law and Popeye would be prosecuted under that premise.

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  • $\begingroup$ I do like spinach, but I'm neither a commercial pilot nor owner of an experimental. Loopholes do me no good. Commercial pilots' rule of thumb is "whose plane is it?" With the FARs, passengers aren't always passengers. It's an interesting confluence. $\endgroup$
    – Greg Bacon
    Feb 22, 2017 at 23:20
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    $\begingroup$ Under any FAR, when is a non pilot rated individual on board an aircraft not considered a passenger? $\endgroup$
    – Ron Beyer
    Feb 22, 2017 at 23:27
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    $\begingroup$ @RonBeyer When they are crewmembers. $\endgroup$
    – J W
    Feb 23, 2017 at 4:32
  • $\begingroup$ @RonBeyer -- P.S. are you including F/E ratings when you say "pilot rated individual?" (If not, then a F/E with no pilot ratings, only a F/E rating, would be the obvious example...) $\endgroup$
    – UnrecognizedFallingObject
    Feb 23, 2017 at 4:37
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    $\begingroup$ @RonBeyer I think that's what I mean too. For example, the non-rated individual could be an observer. What if a company hired a pilot to fly an aircraft (experimental or otherwise) performing aerial survey or patrol work with a non-rated individual as a crewmember, an observer or technician for example. $\endgroup$
    – J W
    Feb 23, 2017 at 5:14

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