(or why I don’t want to ferry an aircraft for you whatever money you’re offering)
One of the industry sectors to benefit from the 2020 pandemic is aircraft ferrying, that is flying to relocate an aircraft, without passengers, for maintenance, repair, export or (most likely at the moment) 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. An article in 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, provided the aircraft is not listed on an AOC or NCC/SPO declaration.
Which national law?
The applicable national law is not that of the state of registry but 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. Clearly, we need to establish who is the operator for each particular 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”. This is not necessarily 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 the company providing the ferry service is large and well organised, then there may be an operations control function.
Many companies offering aircraft ferrying as a service introduce qualified pilots and outsource other tasks such as flight planning, ground handling and fuelling etc. It may be the owner who decides where and when the aircraft should be ferried but the final responsibility for deciding 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 identity of the operator is unclear, then it’s not clear which regulations are applicable to the flight.
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 then the aircraft owner will typically have insurance for ground risks. This can be extended for the duration of a ferry flight to include flight risks but it must be the operator that is insured, not just the owner.
A ferry flight can 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 comply with the management system requirements but it’s still unclear which operating rules apply because commercial ferry flights don’t fit with the definition of “specialised operations“. The need to have crew training and manuals for each aircraft type also make it difficult for a declared operator to offer ferrying for any aircraft type at short notice.
What if something goes wrong
The majority of ferry flights are uneventful, but the safety risks are different to a regular commercial flight. If something does go wrong, then there will be an investigation and an insurance claim. Any ambiguity about who was the operator and which rules are applicable will make it easy for an insurer to avoid paying out. Things may also get difficult for the pilot-in-command if it turns out that he/she was the operator of the aircraft.
Post-Script: Why are the rules such a mess?
In the years since 2003 the European Union has progressively adopted rules of almost every aspect of aircraft operation. The rulemaking process is necessarily complicated as it requires consensus among stakeholders from many disparate nations. A rulemaking task for this was initiated by EASA 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 a number of times but were not able to come up with a ruleset that worked for all stakeholders and were compatible with European law. The task was abandoned, and a clause inserted into regulation making these flight subject to national law.
The national law provision works well for the large aircraft manufacturers which constitute strategically important industries 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 is considered ‘low risk’ (no members of the public carried) so, in some European states the regulations may not have been updated for many years.