Tributes to Emiliano Sala were laid at Cardiff City Stadium in the days after the fatal crash.
“I am aboard a plane that seems like it is falling to pieces”
Footballer Emiliano Sala and his pilot died two years ago when an illegal charter flight crashed into the sea. How common is illegal charter and what can be done to combat the global problem? Words: Yves Le Marquand
YOU CAN HEAR the fear in the young football star’s words. It was one of Emiliano Sala’s last messages. More than two years have passed since the PA-46 Piper Malibu piloted by David Ibbotson carrying the Argentine Sala to his new career at Cardiff City Football Club plunged into the English Channel killing both men. But the industry appears little closer to remedying grey or illegal charter – neither in the UK nor worldwide.
Some facts are beyond dispute. The final report from the UK government’s Air Accidents Information Branch (AAIB), published in March 2020, concluded neither Ibbotson nor the Piper Malibu, N264DB, held the correct licensing to operate commercial flights. It also said that Sala would have been “deeply unconscious” due to carbon monoxide poisoning at the point of impact. The report contains safety recommendations concerning: the fitting of carbon monoxide (CO) detectors; additional in-service inspections of exhaust systems; and the maintenance of flight crew licensing records.
In October 2020, the UK Civil Aviation Authority (CAA) confirmed its intention to prosecute David Henderson. He is a British pilot who was allegedly replaced by Ibbotson on the day of the flight, in connection with the plane crash.
Crispin Orr, chief inspector of air accidents at the UK Air Accidents Investigation Branch (AAIB), was clear in his condemnation of illegal charter: “The chartering of aircraft that are not licensed for commercial transport – so called ‘grey charter’ is putting lives at risk. We welcome the Civil Aviation Authority’s efforts to stop this practice through their ‘Legal to Fly’ campaign and other interventions.” An independent transport review, commissioned by the UK government, will probe the problem of illegal charter.
But the problem is not confined to the UK. Most countries around the world have long grappled with the threat.
In the US, David Norton, aviation attorney, with Shackelford, Bowen, McKinley and Norton, based in Dallas Texas, said illegal charter is a growing problem. “It's always been an issue under our rules because they are not as crystal clear as it should be,” Norton told Corporate Jet Investor. “But I think the feeling over here is that it started really to kick off with the Great Recession in 2008. Where a lot of people had airplanes to commute around, they were paying a lot of money for them and they were looking for ways to offload that cost.”
Norton said the issue of illegal charter has been around for “forever”. He recalled: “I wrote an article that talked about improper ownership under our US rules, which are slightly different than the UK rules under certain ownership structures. I wrote that article back in 2002, because it was so prevalent back then, and I still get clients who call me because of that article. So, it's been a problem for forever. Part of it is all the civil aviation organisations can barely keep up with the scheduled airlines, let alone people flying airplanes, especially here in the US where it's so spread out.”
Norton has been practicing aviation law for three decades, he pointed to the ebb and flow of illegal charter’s prominence in the limelight. The efforts against illegal charter were ratcheted up in 2001 to 2002, according to Norton, after a Gulfstream aircraft, too heavy for flight, attempted take-off at Teterboro, New Jersey. The jet veered off the runway, across the highway and crashed into a hangar. While everyone in the plane survived, the crash killed a passing motorist and “in a big way” caught the attention of the FAA.
“So, there was a big ratchet up of FAA enforcement and additional guidance early in the early 2000s. And that did kind of clamp down on illegal charter a little bit, but once that was done, I think the FAA went back to other things. And it just started growing again and then, by 2009/ 2010, after the recession, everybody had forgotten about illegal charter. And that's where the whole problem came back in,” said Norton. But to its credit, the FAA is making a lot of educational efforts through platforms such as webinars and physical presentations, he added.
“Not long ago I got a call from a client who has a PC-12, a beautiful airplane, and a broker reached out to them and was looking to do a long-term block lease on the aircraft for my owner,” said Norton. “She was asking questions that he couldn't really answer and it was pretty clear that they were probably going to to be plugged in to some operation that was not going to be a certificated charter operation to be blunt. The issue with PC-12s is they’re under 12,500lbs, meaning they’re a small aircraft, so you can fly them around under leases and never have to talk to the FAA,” said Norton.
“Clueless, careless, criminal”
Another angle is cost sharing. Norton said he is receiving more calls from clients looking to share cost. Cost sharing under a Part 91 agreement is not impossible but very difficult to do correctly. Nevertheless, there is a lot of it going on, he notes.
The FAA says when it comes to illegal charter, there’s clueless, careless, and criminal, according to Norton. “A lot of people are on the clueless side. They just are not that familiar with the safety ramifications. Some should know and they’re just letting it slide and some, looking back to the PC-12 guys, who were looking to get block charter on the aircraft, are pretty close to criminal.”
The Air Charter Association has also been working hard to highlight the risks. “As an industry, we all used to say that it would take the death of someone famous in an illegal charter to bring it to the public’s attention,” says Dave Edwards, former CEO, Air Charter Association. “But there is still an awful lot of work to do at a government and regulatory authority level. We can’t keep being told that resources are an issue. That is, to be blunt, not the industry’s issue to solve, that’s the government’s and the regulators’ responsibilities. The only good thing to come out of Sala’s death is that it’s being openly discussed, but it’s very sad that it’s taken this to bring it out into the open.”
Edwards believes a small number of people are breaking the law by paying for flights on aircraft which are not allowed to carry paying passengers. “The reason it’s regulated is to protect the travelling public, through better training, better safety and quality management systems and a number of layers of checking before any flight takes place,” he said. “In the unregulated environment you have one person, the pilot, responsible for everything and nobody else to sense check them and keep commercial pressure to perform away from them.”
Gary Palin, director, Air Fleet Operations, a 30-year aviation veteran who has established operators in Europe and the US, shared Edwards’ pessimism: “35 years ago, I was fighting grey charter. The authorities had no teeth then. They don’t now.”
Edwards says there are two types of offender to address. First, there are the people who go out of their way to abuse and break the law. Those include private pilots who fly passengers in non-commercially-rated aircraft – presumably for personal gain when they know they are flouting the regulations. Second, are those who don’t understand the law and end up breaking it by accident. Those flouting the regulations must be targeted first, with prosecution, impounding aircraft and the withdrawal of their pilot’s licence. But Edwards added: “We can all work together with government, regulators and the industry to educate the ones who break the law unintentionally – the very last thing we want to do is stop any form of flying from taking place.”
“After the recession, everybody had forgotten about illegal charter.”
David Norton, Shackelford, Bowen, McKinley & Norton
“35 years ago, I was fighting illegal charter.”
Gary Palin, Air Fleet Operations
ILLEGAL CHARTER Counting the cost
Poignant images of the PA-46 Piper Malibu resting on the seabed of the English Channel reveal the practical consequences of illegal charter. Neither pilot David Ibbotson nor the aircraft held the correct licensing to operate commercial flights. The body of 28-year old football star Emiliano Sala was recovered in February 2019. Ibbotson’s body has never been found. The single-engine aircraft used to ferry Sala on the fatal flight from Nantes, France destined for Cardiff was the US-registered N264DB pictured below.
Edwards believes there are two avenues in which this can be tackled: education and legislation. From a legislative standpoint, Edwards says the UK, and the majority of jurisdictions, mostly has the laws in place to control the issue. “What we need is enhanced and more proactive policing by the regulatory authorities to help create a culture of reporting and to make it more difficult for people to operate illegal charter flights. As an industry we see it happening, we report it is happening. But the response has always been fairly muted with around one prosecution a year in the UK with a fine of around £1,000 and that’s something we’re openly offering our support to the authorities to help change.”
Liability and risks
One area requiring legislative change is day-leasing, said Edwards, this is where users can hire an aircraft for one day or a flight and hire a pilot separately, although usually through the same source. One concern, arising from “a lot of work that we’ve done with end users”, is that the passengers have no concept of the liability and risks they are running by becoming the operator of the aircraft for that flight. That includes not having valid aircraft insurance and potentially invalidating their own personal insurance policies.
Edwards said it is very depressing to speak with his counterparts across the globe to find issues regarding illegal charter are the same. But, he said, there are some basic things any potential charterer can check to assure safety standards. “The basic one – use a broker who understands the market to help you. And if you’ve chartered an aircraft ask to see a copy of the Air Operator’s Certificate or the Part 135 Air Carrier Certificate and the pilot’s Commercial Pilots Licence. If you’re not readily provided with the details you need to see, ask why not. Never be afraid to question anyone. If they are acting legally, they will not be reluctant or hesitant to help you with every piece of information you require.”
In the US, Norton believes Covid-19 is introducing a new risk to the threat posed by illegal charter. That is the arrival of newcomers to private aviation who are unaware of how the market operates. Price points have shifted and the perceived risk of airline travel has become too great for many wealthy individuals to contemplate. Also, the reduction in airline services has made convenient airline flights harder to find. Another big problem in combating illegal charter following Covid-19 is the carelessness of aircraft owners desperate to keep their aircraft flying in what is looking to be world’s largest ever financial downturn.
“Our problem here in the US and in Europe is that we have created one of the world's safest modes of transportation and when people get on an aircraft, they expect that level of safety,” said Norton. “There's really a pretty broad spectrum of getting on a 787 compared with getting on an SR22 four-seat single engine piston – that’s just different. I am a pilot and I understand the risk but the problem with some of these newcomers they don't understand the risk or have any realistic way to do the due diligence and oversight.”
The National Air Transport Association (NATA) and the National Business Aviation Association (NBAA) both have resources to check the validity and certification of a charter broker or operator. The classic view of a softer approach to illegal charter is changing despite the FAA being a large bureaucratic organisation, said Norton. The difficulty is spotting what looks like illegal charter is a lot different to building a legal case to be able to enforce the law. But the FAA enforcement team has been busy covering over 300 cases in the past decade, recently fining one operator nearly $600,000.
“Finally, I am talking to some clients who are getting contacted by the FAA safety inspectors, for the first time ever, to talk about leases. So yes, it’s happening,” he says.
“Never be afraid to question anyone, if they are doing it legally.”
Dave Edwards, formerly Air Charter Association
NetJets’ vice president, Michael Maratto, recognises the problem of illegal charter is difficult to quantify. While condemning the practice, he told delegates at Corporate Jet Investor’s Miami 2019 conference that innovation in service and operation should be distinguished from illegal charter. “The fact that we are standing here and saying that illegal charter is something that should be stopped is not inconsistent with the idea that we can be innovative, and we should be innovative to expand the market. I think that is a really important distinction – innovation is great, but we would like to do so safely,” said Maratto.
Saudi Arabia leads the way
It partly comes down to regulator focus. Saudi Arabia was so concerned about the problem of illegal charter it took decisive action, Yosef Hafiz, vice president Sales and Marketing, with NASJET, told Corporate Jet Investor. “10 years ago, about half of charter flights in Saudi Arabia were illegal and the other half were legal. But now 99% of flights are legal,” said Hafiz, based on his experience working with the company that offers aircraft management and charter services based in Saudi Arabia.
The growing problem of grey charter was remedied by the country’s General Authority of Civil Aviation (GACA) requiring every aircraft owner based in the country, regardless of their country of registration, to join a local Saudi management company or set up an operator certificate. Aircraft owners now must have an AOC Commercial Operation or an Operator’s Certificate for Private Operation. “GACA has really done a good job in clearing up the market and they do a lot of spot checks on aircraft coming in – not only on local operators – to make sure they are not doing illegal charters,” said Hafiz.
Meanwhile, a stand is being made against illegal charter by the new Air Charter Safety Alliance. The ACA’s new CEO, Glenn Hogben told CJI: “The alliance was formed to coordinate a global cooperation working to eliminate the dangerous practice of Illegal charter flights. Illegal charter goes against everything our industry works hard to deliver; it increases risk to passengers, damages the repution of our industry, careers and businesses.”
Hogben said often participants do not realise they are involved in an illegal charter and the risk they are taking. “Working with our partner associations around the world, we are aiming to protect the air charter community and raise awareness by educating passengers, pilots and aircraft owners about the serious consequences of illegal charter."
Despite the high-profile Sala tragedy, Edwards believes it is easy to overlook the threat of illegal charter. “My fear is that the numbers of fatalities are so relatively small that it’s just not enough of an issue to pay attention to. But it’s a risk to life, a loss of revenue to the economy through loss of taxation and it’s damaging the legitimate businesses that pay many millions to the regulatory authorities in fees each year to do it properly. We don’t need a [government] commission at great public expense, all we need is for politicians, governments and regulators around the world to sit up, engage and enforce the existing law properly.”
How many more lives, high profile or otherwise will fall victim to illegal charter? The terrible human cost was revealed in Sala’s last message: “I'm going to Cardiff now, crazy, and tomorrow we get going going [sic]. I will train with my new team tomorrow.”
Aviation lawyer , Shackelford, Bowen, McKinley & Norton LLP
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