Passengers? What's a passenger?  

This is a very sad event, and I can't even imagine what the owner of Marpat is going through right now.

To start: The FAA does not define a "passenger."

Of course there are parts of the FAR's that allow for aircraft certified in other than the "Standard" airworthiness category to carry persons or necessary crewmembers. But...N98F was certified in the Experimental-Exhibition category, and was operating under Part 91, not 133 or 137.

We know that for certain non-commercial operations under Part 91, passengers can "share the cost" of aircraft operation. Indeed, according to an article published on Avweb, Marpat's website was offering 30-minute "rides" in exchange for fuel donations. They probably thought that this was legal. But...FAR 91.319 states:

(a) No person may operate an aircraft that has an experimental certificate -

      (1) For other than the purpose for which the certificate was issued; or

      (2) Carrying persons or property for compensation or hire.

Hmm. The loophole has always been that the "persons" on these warbird rides were not actual paying passengers but only made a donation "for fuel." These are the age-old questions: What is crew-member? What is a paying passenger? What is "compensation?" Are these "rides" legal or not? It is a gray area that is not clearly defined in the FAR's. Marpat and others have taken advantage of this loophole/gray area for a long time. Like i said in my earlier post, the FAA has always looked the other way on these flights. But with seven people killed in that B-17 in Connecticut and now six killed in West Virginia, the FAA won't look the other way anymore! If I were a gambling man (I'm not), I'd bet that soon, the FAA will specifically prohibit these types of warbird flights, and 91.319 will be rewritten.