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position somewhat, because now
everybody has to rush around trying
to decide what that particular word
means and subsequently how
valuable should consideration be to
qualify for the ANO?
The actual definition there comes
from the 19th Century, which reads:
Legal Stuff 283
"any right, interest, profit or benefit,
forbearance, detriment, loss or
responsibility accruing, given, suffered or
undertaken pursuant to an agreement,
which is of more than a nominal
nature."
Try this instead:
"Money or money's worth, which is more
than merely nominal (i.e. wrappers),
including the release of debts, meaning
money or anything capable of being
turned into money, possibly including
some services which cannot."
The real problem with this, though,
lies with insurance. You may (or may
not) know that there is no such thing
as a "contract" of insurance, because
you are betting; in this case, that you
crash your aircraft before a certain
date. The insurance people, of
course, are betting that you don't (or
is it the other way round?).
The trouble is that insurance
companies are well known not to
pay if they can get away with it, so if
they can prove that you were doing
illegal Public Transport, you may
well find that your insurance is
invalid as well, not to mention being
caught for third-party liability in
some cases. Anyway, back to the
subject. The ANO (Art 6) says that
an Air Operator's Certificate is needed
for all flights that may come under
the definition of Public Transport:
"an aircraft registered in the United
Kingdom shall not fly on any flight for
the purpose of public transport, otherwise
than under and in accordance with the
terms of an air operator's certificate
granted to the operator….".
Article 6 was originally Article 3A of
the ANO 1960, and was inserted as
an afterthought to it to cover AOCs
that would be unenforceable during
the time gap until section 1 (2) (a) of
the coming Civil Aviation
(Licensing) Act 1960 came into force
on 30 March 1961. This section was
later repealed by the 1972 Act, so
from that time the ANO could no
longer legally make provisions for an
AOC with enforceable terms. In
other words, an AOC is not made by
statutory instrument.
The 1982 Act says that only
statutory instruments can establish
enforceable terms; in other words,
no enforceable law (that is, by
criminal proceedings) can be made
below the level of a statutory
instrument, which of course an AOC
is not. AOC terms are laid down by
the CAA, which cannot issue SIs.
By the way, the term "operator"
above has been held by leading
counsel to include the pilot (any
person with the management for the
time being of an aircraft is regarded
as being the operator). Reference to
Road Transport Acts shows that if it
had been intended that a "driver"
was not to be an "operator", then
the proper wording was available for
aviation.
Actually, the imposition of Public
Transport conditions is only
permitted by the enabling Act (of the
ANO) where the aircraft is used for
a commercial, industrial or gainful
purpose (specifically Sect 60 (3) (f)).
What it says is that:
"An Air Navigation Order may
contain provision as to the conditions
under which passengers and goods may
be carried by air and under which
aircraft may be used for other
commercial, industrial or gainful
purposes".
284 Operational Flying
Quite a mouthful, but the use of the
word "other" in conjunction with
the Rules of Interpretation of Statute
infers that "conditions" may only be
imposed when aircraft are being
used for gainful, etc. purposes
(notice the absence of the words
"valuable consideration"). As these
rules are meant to be enforceable by
criminal proceedings, they become
penal situations, and as such must be
strictly construed in accordance with
the enabling statute.
So what may be relevant as to what
is or is not Commercial Air
Transport is not the presence of any
consideration, but, if there is,
whether the aircraft is being used for
a commercial, industrial or gainful
purpose. Therefore, all you really
have to do is pin down who the user
is and see what his use of the aircraft
is to see whether Commercial Air
Transport or Aerial Work conditions
　
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