Blackbird promises to “defy gravity” with inexpensive private flights on private jets, turboprops and piston aircraft. Takeoff with the knowledge that this isn’t a traditional air charter

“We bring you the freedom of flight…No matter who you are, no matter what you do, we all face challenges, obstacles, rules, limitations and frustrations—this daily struggle is gravity that pulls us down and tries to keep us from reaching our potential. Together we will defy gravity.” – BlackBird website

I leased a private aircraft and hired a pilot in less than 10 minutes. Was it legal?

On March 12, 2019, I received a press release from BlackBird CEO and founder Rudd Davis. It was titled, “We just raised $10 million to bring you more freedom.”

It read, “We started BlackBird to make personal aviation as accessible and affordable as driving.  Today, I’m excited to announce, we’ve taken another huge step toward making this a reality with the close of a $10 million Series A.”

The promise is clear. Davis continued in the release, “BlackBird is the world’s first aviation marketplace, connecting planes, pilots and people…This means you can simply choose your plane, your pilot and go! Or you can hop on a flight that’s already going. In just the past month, we’ve added hundreds of planes and pilots to the platform, giving you more options and the lowest prices.”

Solving Problems

Cheap flights in private aircraft for short hops, beating the traffic, buying only a single seat if you need it and sharing your flight with others to save money. Flights under $100. It’s private air travel that is affordable to virtually everyone.

Davis talks energetically about our country’s eroding infrastructure that is making driving more of a hassle. He touches on the shortage of pilots with an ATP (Air Transport Pilot) license, which generally requires 1,500 flight hours.

It’s the next level up from the Commercial License, and 500 hours of logged flight time BlackBird requires. New technology like drones is taking away hours building flying opportunities for pilots. Private airplanes sit on the ground underutilized.

Davis believes BlackBird can be a solution.

Easy-To-Book

After downloading the Blackbird app, I did find it easy to use. There were cheap flights. I could schedule my own flights picking the time and aircraft. It allowed me to choose the entire airplane for myself. I could also save money by just buying the seats I needed and letting Blackbird fill the rest. Scanning the app, I found flights already scheduled where I would pay just for a seat. It was quick.

To see for myself, I made and paid for two bookings. I joined an already listed flight aboard a Cirrus SR22 from Hawthorne Airport in Los Angeles to San Diego’s Montgomery-Gibbs Executive Airport. From Blackbird’s home screen, it took just seven clicks. The cost was $99.

You can see the progression left to right as you scroll down on the screenshots below:

It took just seven clicks to book a seat on existing BlackBird flights

Leasing a plane in under 10 minutes

Next, I started a flight, booking a trip from San Carlos Airport near San Francisco to Truckee Airport. It would be a one hour flight instead of three to five hours in the car. It was easy. Starting a flight on BlackBird you are actually leasing the airplane. It’s an important difference from how normal charters work as you will see.

I needed to choose the departure time, select a pilot and decide if I wanted to have BlackBird fill the extra seats. It took me 10 clicks to complete the booking on a Diamond DA40. Four hundred dollars charged to my AMEX. I was done in under 10 minutes.

You can see the screenshots below and the progression from left to right as you scroll down:

Leasing a private aircraft normally takes days and involves lawyers reviewing contracts. Through BlackBird I leased a private aircraft in under 10 minutes.

What did I sign up for?

BlackBird certainly doesn’t go out of its way to tell users about what they are getting into. At the bottom of the page where I clicked to complete the transaction in small but clear type was written, “By continuing, you agree to BlackBird’s terms of use.” The disclaimer is on several pages leading up to the purchase as well.

It didn’t strike me as being different than when I agree to whatever terms Apple imposes to download a new song for 99 cents. In fact, BlackBird’s buy button is marked “checkout.” It felt like this was just another one of those run-of-the-mill online purchases we make for groceries or a new end table for the living room.

Welcome aboard, Doug

Since I had originally signed up for BlackBird in August 2018, I looked back to see what information I received at that point about the service. The only email I could find was brief.

It read, “Welcome to the future of flying. Welcome aboard, Doug! Thank you for setting up an account in the Blackbird app! The hardest part is over, now just sit back and start booking your flights! If you have any questions be sure to check out FAQ. or reach out to us here. – The Blackbird Team”

BlackBird Frequently Asked Questions

As you will see answers in the above mentioned FAQ section barely scratch the surface in terms of what I had signed up for.

The first question asked, “What is BlackBird?

The answer was, “BlackBird is America’s largest network of personal flights. We connect pilots, guests, and local airports so you can arrive closer to your final destination for less time and money than a road trip

No matter your style, BlackBird can help. Fly on your own terms by creating a flight, or book a seat on a plane already flying for the ultimate flight-sharing experience.” 

Next, it addressed, “Is BlackBird an air carrier, or does it operate any aircraft?”

The answer, “BlackBird does not own or operate planes, or operate as a direct or indirect air carrier. We leave the flying to the pros, acting as a connector between guests, duly licensed air carriers, and licensed pilots.”

One business aviation executive I talked with said the above reference to “duly licensed air carriers” is incorrect. He says, “Air carrier certificates are issued pursuant to FAR Part 119, and the air carriers have to apply for ‘Operation Specifications’ that authorizes them to operate under either FAR Part 121 or Part 135.

“Second, a Dry Lease (which is what my flight to Truckee was) by definition cannot be operated by a duly licensed air carrier; otherwise, it would be a Wet Lease,” he adds

If you keep reading this article you’ll understand the differences and why such a faux pax might be bothersome if you were a BlackBird customer.

The only other FAQ I noticed which offered any relevant information to the contracts I had signed electronically is “Why fly Blackbird?”

All planes and pilots are BlackBird-certified, so you know you’re getting the best service and safest flights — and if you need ground transportation, we can help with that, too.  It’s all available in one easy-to-use app, where you can browse flight options, review your pilot, and book everything from a seat to an entire plane.”

One charter broker who reviewed the above, referring to safety claims, said, “I can’t believe that they would make such a representation. Virtually everyone in the aviation industry would say that flying under FAR Parts 121 (scheduled commercial airlines like United, American, Delta, etc.) and 135 (on-demand charter) are safer because of the significantly increased regulatory compliance. Part 121 and 135 air carriers are subject to considerable FAA regulatory oversight, (BlackBird’s) Part 91 operations are not. “

The devil is in the details

If you believe the devil is in the details, prepare to meet the devil. Aviation attorney David Hernandez, a shareholder at VedderPrice, is a former Federal Aviation Administration (FAA) prosecutor who currently advises aircraft owners on aircraft transactions, including FAA, SEC and IRS compliance. He helped me review four key BlackBird documents:

BlackBird Terms of Use

Community Flight Agreement

Pilots Services Agreement

Aircraft Lease Agreement

BlackBird Terms of Use Agreement

The first one I looked at was BlackBird Terms of Use.  If you read the first 871 words, you come to Section 1.1 covering Community Flights, with a link to the relatively short 231 word Community Flight Agreement.

One sentence stuck out:  “Members leasing an aircraft via the BlackBird marketplace and allowing members of the BlackBird community to join their flight…understand and agree to maintain operational control of the flight.”

This struck me as a warning sign that Blackbird wasn’t the standard charter broker App claiming to be Uberizing private jet travel, which is really just some PR spin anyway. Chartering an aircraft is not quite as simple as hailing an Uber or Lyft. Still, chartering doesn’t give you operational control. It’s a legal responsibility and something you will learn all about.

BlackBird is not part of the deal

Anyway, back to the Terms of Use and more about leasing and what BlackBird is not. Reading further, I came to the following:

“By leasing an aircraft through the Platform, you agree to the terms of the Aircraft Lease with the applicable Aircraft Owner. By engaging Flight Crews through the Platform, you agree to the terms of the Pilot Services Agreement with the applicable Flight Crew. BlackBird is not a party to the Aircraft Lease or Pilot Services Agreement each of which is between you and the applicable Aircraft Owner or Flight Crew, respectively.”

In many ways, the above sums it up. You aren’t chartering an airplane. You are leasing it. It’s called a Dry Lease. It means you are leasing a plane from one party and then hiring a crew separately. There are legal reasons for BlackBird to structure it this way. Also, while you are using the BlackBird platform to execute the lease, BlackBird is not a party to it.

A 5,801-word contract on your App

The entire Terms of Use document is 5,801 words. Before even getting to the Aircraft Pilot Services Agreement and Aircraft Lease a couple of things stuck out.

First, the agreements together were over 10,000 words. I’m guessing few if any people read these things, particularly on a smartphone App.

Secondly, I wasn’t just chartering an airplane from a company with a Part 135 certificate. They are legally allowed to operate commercial private flights in exchange for compensation. With BlackBird, I was the Operator. Remember that sentence in the Community Services Agreement by using the platform I “understand and agree to maintain operational control of the flight.”

Giving Up Your Rights To Go To Court

Before discussing the details about why this isn’t your run of the mill Part 135 charter, I  picked out the following from the Terms of Use document which you might not be thrilled about:

These Terms provide that all disputes between you and BlackBird will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except with respect to matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action.”

Talk to any unhappy JetSmarter members. They will tell you not to give up your right to go to court.

BlackBird will not be liable

There’s more legal language. I don’t want to make a mountain out of a molehill. Even when I go to a baseball game, I’m agreeing if I get hit by a bat or ball, it’s not the team’s fault. However, so you can read it yourself, don’t look to hold BlackBird accountable for anything that goes wrong, per the below:

IN NO EVENT WILL THE BLACKBIRD ENTITIES BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE SERVICES OF OR ASSETS PROVIDED BY THIRD-PARTY PROVIDERS, INCLUDING WITHOUT LIMITATION, DEATH, BODILY INJURY, OR EMOTIONAL DISTRESS. “

By the same token, when I go to a baseball game, I’m not taking responsibility for the operations of an airplane and pilot flying from Point A to Point B.

Standards! What standards?

It was becoming clearer what was meant when BlackBird says it’s simply a marketplace connecting users with pilots and planes.

On its website, it prominently describes “Blackbird’s Pilot Standards” by stating, “Your safety is our top priority. Before joining the BlackBird community, every pilot must meet BlackBird’s safety requirements.” 

Those minimums include an FAA Commercial Certificate, 500+ flight hours, background check, Airman’s Medical Certificate, Instrument Rating (IR), and Aircraft Currency, the latter meaning they are currently qualified to fly to plane you are matching them with.

At the same time, according to the Terms Of Use the message is a bit different:

“BLACKBIRD MAY CONNECT YOU WITH THIRD-PARTY PROVIDERS WHO PROVIDE YOU WITH TRANSPORTATION RELATED SERVICES, BUT BLACKBIRD DOES NOT ASSESS THE SUITABILITY, LEGALITY, OR SKILL OF ANY THIRD-PARTY PROVIDER TO PROVIDE THOSE SERVICES. IN PARTICULAR, BLACKBIRD WILL NOT BE RESPONSIBLE FOR ANY LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO A THIRD-PARTY PROVIDER’S FAILURE TO (1) MAINTAIN A CURRENT LICENSE AND/OR PERMIT, OR (2) OTHERWISE COMPLY WITH ALL APPLICABLE LAWS OR REGULATIONS. BLACKBIRD WILL NOT BE A PARTY TO DISPUTES, OR NEGOTIATIONS RELATED TO DISPUTES, BETWEEN YOU AND ANY THIRD-PARTY PROVIDER. RESPONSIBILITY FOR THE DECISIONS YOU MAKE WHEN YOU ENGAGE A THIRD-PARTY PROVIDER THROUGH THE PLATFORM RESTS SOLELY WITH YOU.”

I’ll repeat the last line from the above: “Responsibility for the decisions you make when you engage a third-party provider through the platform rests solely with you.”

“Safety is our number one priority”

“Safety is our number one priority. We’re resourcing against that…The language (in the agreements) isn’t reflective of how we think about safety. It’s a reflection of how marketplaces legally structure,” Davis tells me. He reels off the names of several executives who have experience in aviation safety, including a former compliance leader from Virgin America.

When you make your purchase, you are agreeing not to participate in any Class Action lawsuit:

“YOU AND BLACKBIRD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and BlackBird agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.”

“Incredibly Shocking”

“It’s incredibly shocking to think that anyone would lease an aircraft and hire pilots via an App without thoroughly understanding the associated risks and responsibilities,” Hernandez, the former FAA official told me.  He add that “It often takes several days to negotiate leases and pilot services agreements given the very real risks and complexities associated with FAA Operational Control and regulatory compliance. Clients need to fully understand all of the associated risks and responsibilities before entering into any lease.”

Blackbird’s Pilot Services Agreement

I then looked at the 1,183 word Pilot Services Agreement which another industry executive termed as “complex.”  Since you are in Operational Control for this flight, when you hire the pilot – that’s what you are doing by clicking on the picture of that pilot – you are entering into a legal agreement with that person.

Here are some of the things you are agreeing to:

1.03 Control of Pilot. Pilot shall be, and shall acknowledge that s/he shall be, under the exclusive direction and control of Operator for the Requested Flight.  Operator acknowledges and agrees that Pilot’s services are only for the operation of the Aircraft under Part 91 of the Federal Aviation Regulations (“FARs”). 

1.04 Operational Control. (a)  Operator warrants to Pilot that the Requested Flight of the Aircraft shall be within the “Operational Control” of Operator and not Pilot.  Operational Control includes, but is not limited to, possession, command, and, except for the independent obligations of the Pilot under the FARs, exclusive control over:

(i) the Pilot;

(ii) determinations of whether any particular flight may be safely operated;

(iii) assignment of a Pilot to a particular flight;

(iv) initiation and termination of all flights;

(v) directions to Pilot to conduct flights; and

(vi) dispatch or release of flights.

(b)  Operator shall be responsible for assuring that such operations are in compliance with applicable local, State, and Federal law and, for all flights outside the United States, are in accordance with applicable International Civil Aviation Organization (“ICAO”) requirements and the laws of the relevant foreign countries.”

Andrew Flaxman, director of operations for ExpertJet, an ARGUS Certified and Wyvern Registered charter broker, holds an ATP license. He is type rated in the Citation XL, BeechJet 400/A, Gulfstream IV and holds a LOA (letter of authorization) for Conquest I and II. He reviewed the BlackBird agreements and says, “There are so many red flags,” mentioning many of the same points as Hernandez.

Inviting friends and coworkers for a flight

If you are allowing BlackBird to fill empty seats on that flight or simply bringing along friends, business colleagues or clients, you are taking on even weightier responsibility than a normal charter. You have the same legal responsibilities as if you owned the plane. You are agreeing to indemnify the pilot, per below:

5.01 Operator hereby agrees to indemnify and hold harmless Pilot from and against any and all losses, damages, liabilities, and costs, including but not limited to attorneys’ fees and legal costs, arising from damage or destruction to the Aircraft, or claims arising from damage or destruction of property or injury or death of persons which are in any manner whatsoever related to Operator’s operation of the Aircraft or performance of this Agreement.”

Verify the insurance is valid

Further, since BlackBird is taking “platform fees” to fill the additional seats, you may want to verify with the insurance providers that the policies that come with aircraft and pilot envision the application to this digital platform. As the Operator, it’s your legal responsibility.

Blackbird’s Aircraft Lease Agreement

Next, I took on the 2,891-word Aircraft Lease Agreement – a legally binding agreement – that I must enter into with the Owner of the aircraft. This is the aircraft in which I am agreeing to accept FAA required “Operational Control”.

The first thing that stuck out as you will see below is that I might find my credit card getting hit with extra charges. Hernandez says it appears I am unable to appeal given the absence of any dispute provisions in the lease.

Positioning, Repositioning Charges.  

2.2. Positioning, Repositioning Charges. The Home Base for the Aircraft can be set and changed by the Lessor.  Lessee shall be responsible for returning the Aircraft to the Home Base at the end of the Rental Period at Lessee’s own expense, or positioning the Aircraft if that is needed for Lessee’s intended use.

2.3 Lessee Reimbursement for Charges. Lessee shall be responsible for all charges incurred during any flight during its Rental Period, including but not limited to fees and cost for the Lessee-provided flight crew, fuel, oil, ramp fees or tie down charges away from the Aircraft’s Home Base, landing fees, federal excise taxes, airport taxes or similar charges, customs, immigration or similar charges related to any flight; and any additional insurance premiums required for specific flights during the Rental Period. In the event any such charges are made to Lessor by service providers, Lessee shall promptly reimburse Lessor for such costs.

A missed opportunity

To be fair, when I looked back at my purchase, it states the price is an estimate. That said, when I clicked on a small “i” icon next to this, it only gave me the fare breakdown between pilot and airplane missing a chance to tell me contractually I was agreeing to possible post trip charges (See below).

It’s worth noting the FAA recently issued new rules requiring brokers who sell Part 135 charters to disclose extra fees that impact final price.

You’re responsible for damage by the pilot

While it is common in on-demand charter contracts I’ve seen to hold the customer responsible for any damage you or your guests do to the airplane, in this case you are also responsible for the pilot.

2.4. Lessee Reimbursement for Certain Charges. If it is determined that maintenance or repairs of the Aircraft are required because of the misuse or negligence of the Lessee or Lessee’s flight crew during a Rental Period, then Lessee shall be responsible for those charges or cost.”

Dry Lease

BlackBird’s arrangement is a Dry Lease. A Dry Lease is an aircraft lease without pilots. You are leasing an aircraft and then hiring a pilot independently from the entity providing the aircraft.

Basically, you must obtain the aircraft and pilots from two different entities. You are flying under what’s known as FAR Part 91, General Operating and Flight Rules, which are rules that apply to entities who own and operate their own aircraft. I had willingly accepted all of the responsibilities and risks of aircraft ownership when I booked my flight.  

On the other hand, a Wet Lease is an arrangement in which you obtain an aircraft and pilots from the same entity or from two entities working together. The entity leasing and operating the aircraft should be an FAA-certificated air carrier, and the air carrier has Operational Control, including all of the tort and regulatory liability risks, Hernandez says.

Just a few weeks ago, The Air Charter Association, a European trade group wrote to the British version of the FAA over their concern about Dry Leases. The letter read in part:

“{I)t is imperative that the traveling public has a full understanding of the higher levels of risk and lower levels of safety (Dry Lease) flights have, when compared to Commercial Air Transport (traditional charter) and, perhaps more importantly, that (consumers) have a complete and transparent understanding of the full legal liabilities of assuming the role of ‘aircraft operator’ during the duration of the lease, together with the financial risks and exposure that gives to the individuals leasing the aircraft.”

Not your father’s Part 135 private charter

Part 135 operational requirements are considerably different with much more stringent regulatory safety requirements than Part 91. For example, it requires strict pilot duty time limitations, drug, and alcohol testing, pilot background checks, and a wide variety of safety requirements for operating and maintaining the aircraft.

Time and money

It can take months and several thousands of dollars of modifications before the FAA will authorize an aircraft to be operated under Part 135 certificate. Simply put, Part 135 approvals are time-consuming and expensive.

Read: Deadly Charter Flights: An industry group is expressing concern about illegal charters a week after a troubling report on a 2017 Learjet crash

“I would be extremely shocked if BlackBird’s customers truly understand their responsibilities as the operator of the aircraft in the eyes of the FAA and the person hiring the pilots,” Hernandez says.

Part 91

Under Part 91 you are not allowed to sell seats although there are narrow provisions that allow cost sharing. BlackBird in its Community Agreement is clear you can’t collect money from other passengers. Since BlackBird calls the money it collects filling other seats a platform fee, and none of it is passed to the pilot or owner, it apparently believes it’s not violating FAA regulations. More on that later.

Operational Control

If you’ve read this far, you probably want some more details on what’s Operational Control, since you as the Lessee is going to be in operational control, so here you go:

During each individual Rental Period, Lessee is and shall be the sole operator of the Aircraft and has operational control of the Aircraft in conjunction with Lessee’s pilots. During each Rental Period, Lessee is responsible for operating the Aircraft in accordance and compliance with all laws, ordinances and regulations relating to the possession, use, operation, or maintenance of the Aircraft, including, but not limited to, the current Federal Aviation Regulations (FAR’s) Operational Control shall be as defined in 14 C.F.R. § 1.1, and for purpose of this Agreement and with respect to all flights conducted, means the exercise of authority over initiating, conducting or terminating a flight.

Lessee shall (i) at its sole expense, locate and retain, through direct employment or independent contract for flight services, a duly qualified flight crew and select the pilot in command and (ii) be responsible for all physical and technical aspects of operating the Aircraft on the flight, including but not limited to review of all documentation to confirm all required maintenance has been performed, flight planning, fueling, weight and balance calculations, handling, communications and all other operations, such as to oversee the Pilot in Command.”

Acknowledging risk

Hernandez stressed that “Operational control is such an important topic, that the FAA mandates that all fractional aircraft program providers must explain the risks associated with Operational Control and must have all fractional customers sign an Acknowledgement of Risk.”

Fractionals, by the way, operate under Part 91 Subpart K, which like Part 135 has considerably more requirements than Part 91, including duty time limits for pilots.

Hernandez says, from a risk perspective, BlackBird’s agreements contain waivers of liability and indemnifications that make its customers liable for almost every liability, claim or damages (“IN NO EVENT WILL THE BLACKBIRD ENTITIES BE LIABLE FOR ANY DAMAGES WHATSOEVER . . . INCLUDING WITHOUT LIMITATION, DEATH, BODILY INJURY, OR EMOTIONAL DISTRESS”), which includes claims from members who Blackbird selects to fill empty seats.     

Hiring Pilots

Since you are in Operational Control, you now know you are responsible for hiring the pilots. On the App, it’s easy. You have at least two choices, both with name, picture, and text which reads, “commercial pilot.” When you click, here is what you are agreeing as Lessee of the aircraft:

“Selection of Flight Crew. Lessee shall select and hire its own flight crew; provided that the pilots shall hold at minimum a commercial license or ATP certificate and meet Lessor’s qualifications, shall be familiar with and licensed to operate the Aircraft, and shall have current medical certificates, and recurrent training including their Biannual Flight Review.  All flight crew members must be named pilots on the Aircraft’s insurance policy, or meet the open pilot warranty on the policy, or Lessee shall provide its own insurance covering the Aircraft’s hull value.”

BlackBird is not responsible

You might assume since the pilot is on the App, somebody is checking to make sure that everything is in order, and that may be the case when they sign up. However, the agreement you will electronically sign says BlackBird is not responsible to make sure there they’ve kept their licenses or permits current.

“BLACKBIRD DOES NOT ASSESS THE SUITABILITY, LEGALITY, OR SKILL OF ANY THIRD-PARTY PROVIDER TO PROVIDE THOSE SERVICES. IN PARTICULAR, BLACKBIRD WILL NOT BE RESPONSIBLE FOR ANY LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO A THIRD-PARTY PROVIDER’S FAILURE TO (1) MAINTAIN A CURRENT LICENSE AND/OR PERMIT, OR (2) OTHERWISE COMPLY WITH ALL APPLICABLE LAWS OR REGULATIONS.”

Who’s legally responsible?

The separate User Terms & Conditions state, “Pilots hired by Users to operate flights maintain the responsibility and authority of the flight and may be delegated operational duties and decisions.” That doesn’t waive your legal responsibility I’m told.

Davis says, ” This is the way you legally structure marketplaces.” He tells me the contracts are based on both aviation and marketplace law.

Civil penalties up to $33,000…per day

It’s the Lessee’s legal responsibility to ensure “required flight logs, maintenance logs, or other recording entries required by the FARs” are taken care of.

In practicality, anyone maintaining the aircraft, the owner or the pilot would do this. However, if they didn’t and something happens days, weeks or months later, you could have liability if it happened during your lease.

Hernandez says, the maximum FAA civil penalty for each FAR violation is approximately $33,000 per day, per violation, according to 49 U.S.C § 46301(a)(1) and 14 C.F.R. § 13.301. 

You probably won’t see this

Right above where I would have signed the Aircraft Lease Agreement if I was signing it the old fashioned way instead of an electronic date stamp is a reference to the Truth in Leasing disclosure. It’s only required for aircraft over 12,500 pounds under FAR 91.23 and described in AC 91-37B for aircraft (see below).

AC 91-37 or Truth in Leasing is a warning about what you are getting into when you lease an airplane:

“To legitimately engage in charter air service, a company must be FAA-certificated as a 14 CFR part 121, 125, or 135 operation. No one may legally offer charter air service for compensation or hire unless he or she has a valid air carrier or operating certificate issued by the FAA…”

You probably notice the above doesn’t reference Part 91, so read on:

“The FAA safety standards for a part 121 or 135 air carrier certificate require compliance with a higher level of pilot training and certification, aircraft maintenance procedures, and operational safety rules than those required for flights conducted under part 91 general operating rules. Pilots, crewmembers, and the aircraft are checked periodically by FAA inspectors, and crewmembers have regularly required proficiency checks to maintain their certifications by the FAA.

Advice from the FAA

You may also want to take heed of the advice from the FAA below:

“There are aviation companies certificated to offer charter air service; however, there are also dozens of other companies or individuals who have no air carrier or operating certificate but who are willing to violate the law by evading safety requirements. Some evade air carrier certification by using devious leasing schemes intended to appear legitimate. Before you sign for a charter air service, ask to see their air carrier operating certificate issued by the FAA. Additionally, before entering into an aircraft lease, ensure you understand and are willing to accept your responsibilities for compliance with air safety regulations.”

Is BlackBird safe?

Davis says BlackBird goes beyond what’s required, including doing background checks on all prospective pilots. One former military and business aviation pilot told me when it comes to pilots, it’s not just the hours they’ve accrued. It’s the quality of training.

Another says, there’s a world of difference between multiple days in a simulator twice per year at topline facilities such as FlightSafety International and a local flight school.

BlackBird’s recruiting pitch for pilots

Don’t walk away and believe simply using Part 135 operators alone is the answer. The National Transportation Safety Board (NTSB) just issued a highly critical report of the Part 135 Charter Operator and pilots in the 2017 Learjet 35A Teterboro crash.

Some brokers will only charter aircraft from operators where the pilots are full-time employees. In the Teterboro accident the pilots were indeed full-time employees of the operator. Even on charter aircraft that only require one pilot, there are many users who want two pilots, and will pay extra for it. There are various viewpoints.

Airplane Sourcing Standards

In one place BlackBird says it requires airplanes that conform to requirements for Part 91 flying. At the same time, in the Terms of Use as you’ve seen, it doesn’t take legal responsiblity.

In a section on their website targeting owners, it states, “Your aircraft is always in good hands. Add your plane to a fleet that’s managed to the highest standards and rented out at competitive rates.”

If you are interested in buying a plane and putting it on the BlackBird platform, they apparently help as well. “Looking to buy? Our team specializes in sourcing, funding, and purchasing aircraft for as low as $45,000 down,” the website states.

Not all Part 135 Operators are equal

There are over 3,000 Part 135 Charter Operators in the U.S.

Various brokers I know focus on several hundred they consider having operational standards that are significantly higher than government requirements.

In fact, last month the FAA said it wants to improve the safety of Part 135 operations. It wants to bring these companies closer to the standards of Part 121 airlines like United Airlines or Delta Air Lines.

Wyvern, Argus and IS-BAO

To check on Part 135 operators and pilots, brokers use third-party industry auditors such as Wyvern, Argus International and IS-BAO. Many of the same types of airplanes that are on the BlackBird platform can be chartered from Part 135 operators, though it will likely cost you more.

BlackBird doesn’t provide users the tail number of the aircraft they are leasing before making payment. I don’t like that. It also doesn’t disclose the owner or the management company.

Best practices are when you charter, let alone buy or lease, you look at the history of maintenance and incidents. Remember those Carfax commercials if you want an analogy.

In business aviation there as there are brokers who work with consumers to book charters sourcing operators. There are also specialized brokers who focus entirely on arranging sales and leases of private aircraft. Having real people who know what they are doing help instead of using an App may make you feel like a Luddite. When chartering or leasing a piece of metal that defies gravity, it has benefits.

Is BlackBird legal?

Hernandez declined to offer an opinion on whether or not BlackBird passes muster.

I asked Davis if BlackBird had submitted an FAA Chief Counsel Interpretation? The answer was no, but he says the company is working with regulatory authorities.

BlackBird has been compared to Flytenow and AirPooler, two sharing concepts the FAA shuttered. Neither required Commercial Licenses for their pilots, a box that BlackBird checks.

Flying free?

There are some provisions that allow Part 91 cost-sharing.

BlackBird states members are paying “platform fees” to join flights scheduled by other members. My $99 was charged as a “Service Fee” (below left). It states the pilot and plane were “Free” on the payment page.

Different lease prices

When I started my own flight and paid $400, you will recall, it gave me an option to make my flight private for an extra $600. There was a price difference in my lease ($400 vs. $1,000) if I “let BlackBird fill 2 empty seats.” See below right.

Davis says BlackBird keeps 100% of these fees it charges to members booking seats. It’s not a party to my Dry Lease. In other words, there is no cost sharing. The person who initiates the flight is paying 100% of the remuneration to pilots and aircraft owners.

Davis believes his contracts are structured to be in line with both aviation and marketplace law. He says they follow the examples of Uber, Lyft and Airbnb. New Enterprise Associates (NEA) just committed $10 million. One expects they must feel confident BlackBird is operating on the right side of the Feds.

Aviation Empowerment Act

In speaking with Davis, he uses investor scrutiny as evidence that he is on solid ground. He also argues for evolving regulations. He’s not alone.

Last year, Utah Senator Mike Lee introduced the Aviation Empowerment Act. It aimed to reduce regulations on America’s pilots by more tightly defining key terms in the FAA’s 1986 Advisory Circular. It would have created a new class of pilot. Lee’s bill also sought to broaden flight sharing exceptions.

#FakePR

Many journalists who write about upstarts such as BlackBird don’t cover private aviation regularly. A press release about a new App or investors comes out often invoking Uber. The reporter gets the assignment for a 600-word article by tomorrow at noon. They rush to set up a quick interview.

I reviewed nearly a dozen articles about BlackBird, many by major media. While I found plenty of references to “chartering” an airplane, I couldn’t find a single mention of “leasing.”

The new language of an aviation marketplace

When I spoke with Davis, he told me his view is most journalists writing about BlackBird have no idea about chartering versus leasing let alone Part 91 or 135. He sees what BlackBird is doing as new and different.

Reporters will use old language until a new language is created, he says. That new language is that BlackBird as a marketplace. Davis has created an easy to use marketplace. By the same token, his customers deserve to understand the risks as well as the benefits. “Customers are not buying flash drives on eBay,” one business aviation executive told me.

Defending BlackBird

If BlackBird is as Davis claims a disruptive marketplace like Airbnb or Uber, it’s fair to say that both have been the target of establishment efforts to throttle their hyper-growth. New fangled competition that seemingly isn’t playing by the rules is seldom welcomed. Both have had to battle the establishment and regulators.

Final Thoughts

If you are going to start a shared flight and then allow BlackBird to fill empty seats or you plan to bring along friends or work colleagues, I would highly recommend before booking on the platform you consult with an attorney who specializes in aviation law. Show them the various agreements since you will be taking Operational Control and all that entails.

In fact, you probably should just do that regardless of how you plan to use Blackbird.

Hernandez says it’s absurd to enter into any complex arrangement with significant potential tort and regulatory liability exposure if something goes wrong without fully understanding the risks.  

40,000 annual deaths in road crashes

There are other concerns you may have. You may also decide it’s more likely you will meet your maker driving on the highway.

Nearly 40,000 people died in 2017 in 34,247 road crashes. FAA statistics show 347 people died in 209 general aviation fatal accidents during the same period. Perhaps flying with BlackBird is safer than driving, which is what Davis sees as the competition. If you read this far, at least you now know what you’re getting yourself into.

More candor needed

Even if everything passes muster with regulators, I wish BlackBird would provide much more education on its website and App. It should be in prominent places, not hidden in long legal agreements behind links at the bottom of the page. I also think it would behoove them to help reporters understand what they are writing about. Doing both would be better for consumers and BlackBird in my opinion.

BlackBird says, “Go anywhere for less than the cost of driving, and none of the hassle. Carpool karaoke optional.” I would add, attorney required.

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(Editor’s Note: During my telephone interview with Davis, he debated the interpretation I had of some language in its contracts. Since he is not a lawyer, and because of the detailed aspects of some questions, he agreed it would make sense for a further discussion with somebody from his legal team. Despite following up, I wasn’t able to arrange such a call.)

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About the Author Doug Gollan

I am Founder and Editor of Private Jet Card Comparisons, the only independent buyer's guide to jet card membership programs, and DG Amazing Experiences, a weekly luxury travel e-newsletter for private jet owners. I am also a contributor to Forbes.com