(or, why I don’t want to ferry an aircraft for you)
One sector of the aviation industry that has benefitted from the covid pandemic is aircraft ferrying, flying to relocate an aircraft, without passengers, for maintenance, repair, export or storage. Ferrying an aircraft sounds like a simple operation, but, in Europe, the rules around aircraft ferrying are opaque.
Unlike almost every other kind of aircraft operation, ferrying does not fall within the scope of European rules. The Air Operations Regulation makes “flights carrying no passengers or cargo where the aircraft is ferried for refurbishment, repair, inspections, delivery, export or similar purposes” subject only to national law unless the aircraft is listed on an AOC or NCC/SPO declaration.
Which national law?
The applicable national law is not that of the state where the aircraft is registered; it’s the state in which “the operator has its principal place of business […] is established or resides”. That’s easy if the aircraft operator is Airbus but more difficult for ad-hoc ferry flights of individual aircraft. We need to establish who is the operator for each flight.
Who is the operator?
The operator is the person who exercises operational control; that is, who has “responsibility for the initiation, continuation, termination or diversion of a flight in the interest of safety”. The operator is not usually the pilot, although she/he does have the final say. In an airline or a corporate operation, the company is the operator, and there’ll be a team of operations controllers following company procedures. For a ferry flight, the identity of the operator is less clear.
If a company providing a ferry service is large and well organised, there may be an operations control function. Many ferry companies just introduce pilots and outsource other tasks such as flight planning, ground handling and fuelling etc. The aircraft owner may decide where and when the aircraft should fly, but the final responsibility for determining whether to go today and if the weather is good enough might be left to the pilot. In this case, the identity of the operator is unclear. Is it the aircraft owner, the ferry company, or the pilot?
If the operator’s identity is unclear, which regulations apply to the flight is not clear.
Non-commercial operation (NCC)
A ferry flight can be within the scope of European rules if the aircraft is listed on the declaration of a non-commercial (“NCC”) operator. An operation is “non-commercial” if there is no “remuneration or valuable consideration” for the operation of the aircraft. This doesn’t preclude paying for services associated with operating the aircraft, such as pilots or flight planning, so an aircraft owner arranging ferry flights could be a non-commercial operator. For “complex motor-powered aircraft” (jets and large turboprops), the aircraft owner must comply with the management system requirements. A ferry company operating flights in exchange for payment is not a non-commercial operator.
A ferry flight can also be within the scope of European rules if the aircraft is listed on a “declaration”. A declaration is a statement submitted by an aircraft operator to their competent authority stating that the operator is responsible and will comply with applicable regulations. The declared operator has to adhere to the management system requirements; however, it’s still unclear which operating rules apply because commercial ferry flights don’t fit the definition of “specialised operations”. The need to have crew training and manuals for each aircraft type makes it difficult for a declared operator to offer ferrying for any aircraft type at short notice.
Anyone who operates an aircraft must have insurance.
If an aircraft is not operated by an airline or corporation because it has been sold, the lease has ended, or the operator went out of business, the aircraft owner will typically have insurance for ground risks. This insurance can be extended for the duration of a ferry flight to include flight risks, but it must be the operator who is insured, not just the owner.
Aircraft insurance policies do not pay out if the aircraft operator has not complied with regulations; ambiguity about who the operator was or which rules were applicable makes it easy for the insurer to avoid liability. Things may also get complicated for the pilot-in-command if it turns out that he/she was the operator of the aircraft.
Why are the rules such a mess?
Since 2003 the European Union has progressively adopted rules of almost every aspect of aircraft operation. The rulemaking process is complicated because it requires consensus among stakeholders from many disparate nations. EASA initiated a rulemaking task for ferry flights in 2013. The primary focus of the task was flights conducted by aircraft manufacturers (‘design and production organisations’) so ferrying was just one aspect of a complex task, also including test flights and customer demonstrations. A rulemaking group met several times but could not develop a ruleset that worked for all stakeholders and was compatible with European law. The task was abandoned, and a clause was inserted into regulation to make these flights subject to national law.
The national law provision works well for the large aircraft manufacturers that are strategically important in their home countries and have close relationships with the national regulators. Ad-hoc ferrying is not a large part of the aviation industry, and it’s considered ‘low risk’ (no members of the public carried). In some European states, the regulations have not been updated for many years.
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