An air carrier means a commercial carrier that provides air transport to the public for pay by utilizing aircrafts as its means of transport. Pursuant to 49 USCS § 40102 (a) (2), an “air carrier” means a citizen of the U.S. undertaking by any means, directly or indirectly, to provide air transportation. Here, “citizen of the U.S.” means[i]:
- an individual who is a citizen of the U.S.; or
- a partnership of which each member is such an individual; or
- a corporation or association of which the president and two-thirds or more of the board of directors are such individuals and in which at least 75 percent of the voting interest is owned or controlled by persons who are citizens of the U.S.
In addition, Section 1(2) of the Civil Aeronautics Act provides that “air carrier” means any citizen of the U.S. who undertakes, whether directly or indirectly or by a lease or any other arrangement, to engage in air transportation[ii].
Further, 49 U.S.C.S. § 496(a) authorizes the Civil Aeronautics Board (Board) to establish classifications or groups of air carriers based on the nature of services provided, as shall be necessary. It also requires the Board to establish such rules and regulations pursuant to and consistent with the provisions of the Civil Aeronautics Act, to be observed by each such class or group, as the Board finds necessary in the public interest[iii].
Depending upon the duty which an air carrier of persons for hire owes its passengers, air carriers can be classified into common carriers and private carriers. A common carrier is[iv]:
- any person who transports persons or property for hire or who holds himself/herself out to the public as willing to transport persons or property for hire by motor vehicle; or
- any person who leases, rents, or otherwise provides a motor vehicle to the public and who in connection therewith in the regular course of business provides, procures, or arranges for directly, indirectly, or by course of dealing, a driver or operator therefore.
On the other hand, a private carrier is one who makes an individual contract, for example, for carriage to a certain destination. The private carrier does not hold himself/herself out to the public as ready to accept and carry all who offer. As a result, a private carrier is not for the public convenience and necessity – instead it is a private transaction. A private carrier is also referred to as a contract carrier[v].
In Jackson v. Stancil, 253 N.C. 291 (N.C. 1960), the court observed that “in North Carolina, a distinction is made between the duties owed to passengers for hire by common carriers and private or contract carriers. A common carrier owes its passengers the highest degree of care for their safety so far as is consistent with the practical operation and conduct of its business. A private or contract carrier of passengers for hire owes them the duty to exercise ordinary care for their safe transportation. Statutes and decisions require that the distinction is to be applied in aircraft cases.”
Usually, what constitutes a common carrier and what constitutes a contract carrier are questions of law. However, whether the carrier is acting as a common carrier or as a contract carrier is a question of fact. Where the facts are in conflict, it is a question for the jury. But, where the facts are un-contradicted, whether the evidence is sufficient to show that the air service is a common carrier is a question of law for the court[vi].
The chief test applied to determine if a carrier is a common carrier is whether or not the operator of the aircraft either by express written, oral statements, or by his/her course of conduct holds himself/herself out to the public as willing to carry at a fixed rate all persons applying for air transportation so long as his/her plane or planes will carry them[vii].
However, in order to engage in air transportation, an air carrier, whether a common carrier or private carrier, must possess a certificate issued by the Board authorizing the air transportation[viii]. Such certificate does not confer a proprietary or exclusive right to use airspace, an airway of the U.S., or an air navigation facility. Each certificate must specify the type of transportation to be provided. It must also specify the places between which the air carrier is authorized to provide the transportation and each general route to be followed[ix].
[i] 49 USCS § 40102(a)(15).
[ii] American Airlines, Inc. v. Civil Aeronautics Board, 178 F.2d 903 (7th Cir. 1949).
[iii]American Airlines, Inc. v. Standard Air Lines, Inc., 80 F. Supp. 135 (D.N.Y. 1948).
[iv] Market Transport, Ltd. v. Maudlin, 301 Ore. 727 (Or. 1986).
[v] Browne v. SCR Med. Transp. Servs., 356 Ill. App. 3d 642 (Ill. App. Ct. 2005).
[vi] Jackson v. Stancil, 253 N.C. 291 (N.C. 1960).
[viii] 49 USCS § 41101(a)(1).
[ix] 49 USCS § 41109(a)(3).