Let's hope you're never involved in an accident that is investigated by the National Transportation Safety Board. But if you are, there are some important things you should know about how the Board conducts its investigations, what powers NTSB investigators have, and what rights you have if the NTSB decides to interrogate you.
September 8, 1997
|About the Author ...
Phillip J. Kolczynski
manages his own law firm in Irvine, California. He has a national practice,
concentrating in aviation, product liability and business litigation in federal
and state courts. Phil teaches evidence, product liability and aviation law at
the Aviation Safety Program, School of Engineering, University Of Southern
California. He chaired the 1990 ABA National Institute on Aviation Litigation in
Washington, D.C., and has spoken nationally at numerous aviation litigation
Prior to moving to California in 1983, he was a trial attorney in the
Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation
Division, Office of the Chief Counsel, Federal Aviation Administration,
Washington, D.C. Phil graduated from Case Western Reserve School of Law,
Cleveland, Ohio, in December, 1976, and attended college at Marquette
University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full
Scholarship. Before entering law school, he was a Marine Corps Captain and F-4
Phantom Pilot. He is a Commercial Pilot with instrument and multiengine
The NTSB was formed by The Independent Safety Board Act of
1974. The NTSB was designed to be an independent agency not susceptible to the
influence of other parts of government. The Board is managed by five "Members"
appointed by the President, each for a five-year term. Once appointed, the
member theoretically has job security for his full term, so if the White House
calls, the Board theoretically doesn't have to jump. (They might only ask, "How
high did you have in mind, Mr. President?")
The NTSB investigates and reports on all U.S. air carrier
accidents, commuter and air taxi crashes, mid-air collisions, serious mishaps
involving public use (government) aircraft and all fatal general aviation
accidents. The NTSB also investigates accidents involving both civilian and
military aircraft and crashes involving military aircraft where the functions of
the FAA are at issue. Internationally, the NTSB investigates major accidents
involving U.S. air carriers and U.S. manufactured airliners under the auspices
of the International Civil Aviation Organization (ICAO). The NTSB even
investigates foreign air carrier crashes in U.S. possession and territories,
such as the KAL 801 crash in Guam.
The Board may delegate to the FAA the investigation of non-fatal, general
aviation accidents, involving fixed wing aircraft of less than 12,500 pounds,
home built aircraft, crop dusters and rotorcraft, but retains the discretion to
oversee these accidents, if necessary. When FAA investigators are working for
the Board, they are not supposed to use information acquired during the NTSB
accident investigation for FAA enforcement purposes.
In order to enable the NTSB to determine the probable cause of accidents and
improve aviation safety, its investigators are given more legal power than many
governmental agencies. NTSB investigators have the right to interrogate
witnesses on demand, inspect files, enter facilities and aircraft, examine the
processes and computer data of any party involved in an air crash. Besides these
Congressionally-authorized powers, the NTSB can obtain subpoenas and court
orders for special searches and seizures of any party who may have relevant
evidence useful in determining the cause of the air crash.
The NTSB regulations specifically state that any witness who is to be
"interrogated" (NTSB choice of words) has the right to be represented by
counsel. This right to be represented by counsel includes the right to be
accompanied and advised by an attorney during all aspects of any interrogation
in any environment. But beware
the NTSB does not generally advise witnesses or
prospective parties of their right to counsel, unless they are actually crew
members on an accident aircraft.
The NTSB may take the position that an organization or business (as opposed
to a person) has no right to be represented by counsel in an NTSB investigation.
This can be dealt with, however, by ensuring the key people who work for the
organization are represented (for their own protection). Moreover, due process
should enable a business to have the right to protect itself against overly
broad searches which could result in the damaging disclosure of proprietary and
confidential, trade secret information. But your attorney might have to go to
court for injunctive relief to curb unwarranted searches by the NTSB.
Don't get me wrong! I support the need for an independent NTSB to investigate
rapidly after a major crash to protect others from a recurrence or to prevent
the destruction of evidence. However, the typical crash investigation does not
require that witnesses or parties be subjected to interrogation or inspection
without advice of counsel. Remember, the NTSB's right to inspect records should
not deprive a business of the original records and files that are needed to
comply with other federal and state regulations.
Another important power bestowed on the NTSB by Congress is the right to take
exclusive custody of the wreckage, cargo and records of the accident aircraft.
This exclusive access has been challenged by a number of private litigants with
significant success in the courts. The NTSB counter-attacked with the 1990
Amendments to the Independent Safety Act. Now, the NTSB may exclude
interested persons, such as the pilot, the owner or the families of the victims,
from any participation or observation of the wreckage testing and analysis.
Is this fair? To understand this issue, one needs to understand the structure of
NTSB investigation and what goes on behind the scenes in an NTSB investigation.
There are two kinds of NTSB investigations: field office investigations and
Fatal general aviation crashes, as well as some air carrier and commuter
accidents with relatively minor injuries, are often investigated by a single
field investigator from one of the NTSB's Regional Offices. If necessary, this
investigator has access to technical experts at The Bureau of Technology at the
NTSB Headquarters in Washington, D.C., the FBI and other federal agencies. He
can also obtain consultation from any commercial operator involved or
manufacturer of the airplane or its subcomponent parts. Traditionally, the Field
Investigator utilizes the assistance of a Flight Standards and/or Air Traffic
Control representative from the FAA Regional Office or facility involved.
Major accidents are handled by a "Go Team" from NTSB Headquarters in
Washington, D.C. The "Go Team" is made up of an Investigator In Charge (IIC)
along with a panel of technical specialists put together to address the primary
issues arising out of any particular crash. Committees called "Groups" handle
specialized components of the investigation, such as an Operations Group,
Structures Group, Maintenance Group, Air Traffic Control Group, Weather Group
Chairman, Witness Group, etc. Moreover, major air carrier disaster
investigations usually include a "Member" of the Board and a Public Affairs
Officer who control everything the media learns about the technical aspects of
Parties are designated to have official status as NTSB Investigation
Consultants in such major accident investigations. Invariably, the Operator,
particularly air carriers and air taxi operators, is designated as a party. The
airframe manufacturer, engine manufacturer and relevant subcomponent
manufacturers may also be designated as parties. The FAA is almost always
designated as a party.
The people who are most interested in the outcome of the investigation, and
who are never permitted party status are the survivors! The NTSB doesn't feel
they have any expertise to offer. This policy ignores the reality that passenger
organization and consumer groups could hire technical consultants, if permitted.
Similarly, the surviving pilot and the owner of the aircraft may not be
designated as parties unless the NTSB feels that they have technical expertise
that cannot be obtained from major operators or manufacturers.
In a major air crash investigation, each of the groups and parties involved,
have daily meetings to review the ongoing developments in the investigation.
Notes are taken, draft reports are discussed, and various theories as to the
cause of the crash are explored. The NTSB traditionally relies on manufacturers
and air carriers to cooperate and provide them with all relevant information
pertinent to the product or operation being investigated.
In the litigation which invariably results from serious air crashes,
"parties" such as the air carriers and manufacturers are the "usual defendants,"
they are frequently found to be at fault for such crashes. Thus, one can
understand the frustration of the victims and in some cases, the pilot and owner
of an aircraft, who are unable to participate in the investigation. These
personally affected non-parties know that the culprit who may have caused the
crash, a designated party that is working hand-in-glove with the NTSB
Investigator is to determine the probable cause. The NTSB's justification for
this is that only the manufacturer or the accident airlines have the necessary
expertise to assist the NTSB in their investigation (49 CFR 831). (Retired
engineers, pilots and those working for other companies using the same
equipment, apparently don't have what it takes.)
NTSB regulations specifically exclude lawyers for the victims and
representatives of insurance companies from participating in the NTSB
Investigation (49 CFR 831.11). The NTSB has advised Congress that it is
important that adversarial interests which motivate litigation be kept out of
the investigative process. Party representatives in an investigation (who are
usually employed by manufacturers and airlines) are required to sign a
declaration conferring that they do not work for lawyers or insurance companies.
Are we to believe that representatives of these entities don't have
adversarial interests which are to be protected? A double standard is permitted.
The airlines and manufacturers often have uninsured exposure, a reputation to
maintain and know that they will be the target defendants in any subsequent
litigation. Moreover, party representatives are not sequestered. There is no way
that the NTSB can prevent the airline party representative or the manufacturer
party representative from sharing the details of the technical investigation
with their colleagues, who report to lawyers and insurers, back at the home
office of their respective companies. Thus, critical technical information may
be acquired by insurers and company lawyers during the early stages of the NTSB
investigation, while the victims and their lawyers are kept in the dark about
the theories of causation which are being examined.
Recently, we've observed the "heroic" efforts of the NTSB and the
unprecedented involvement of the FBI to solve the TWA 800 riddle. The current
Board and its investigators are the best we've had in years. However, the
Government does not use comparable money and manpower in every major air crash
investigation and frequently not in every Part 135 and general aviation
Air crash litigation often involves millions of dollars of exposure. The
insurance companies who pay for the defense of almost every major air crash case
in the United States often have a real incentive to prove that somebody else's
insured bears substantial responsibility for the crash. Indemnity laws require
that all culprits pay their proportionate share of multimillion dollar
settlements for plane loads of deceased business travelers and multimillion
dollar hulls. The insured value pay out, for the hull loss alone, of an MD-11
cargo plane, which crashed in New Jersey a few years ago, was $115 Million
This true story reveals the NTSB's failure to always uncover the exact cause
of a major air crash disaster. A number of years ago, the author supervised the
liability defense of the air carrier which had a take off crash, in which 70
people died and one survived. The NTSB conducted a "Go Team" investigation and
held public hearings. A suspected cause of the crash was that an external "door"
or "hatch" was left open before take off, which resulted in terrible vibration
(heard on the CVR) and aerodynamic anomalies recorded on the FDR. The pilot is
believed to have misinterpreted the cause of the vibration perhaps fearing a
structural failure. He did not apply sufficient power after lift off to sustain
flight. The aircraft crashed into a trailer park stocked with liquid propane
tanks. The pilot was the first to pay for his error with his life, and of
course, unavailable to explain why he inexplicably failed to maintain flying
speed. The suspected external hatch was not guarded by a "door open" warning
light and was the type designed to be closed by ground service personnel. (Raise
any questions?) The Board's Probable Cause was pure pilot error — failure to
maintain flying speed!
A formal request made to the Board to examine the wreckage to search for the
suspect hatch was denied. The NTSB investigators never found it. After they were
done with the wreckage, they used an "articulating loader" to scoop up the
airplane parts which were crunched and dropped into a dump truck. The truck then
poured the evidence into a pile on the floor of a hangar whereupon it was turned
over to us. My consultants found the suspect hatch and I turned it over to the
Board member in charge at the public hearing. A hastily organized test flight
test had already been attempted by the Board using a similar aircraft, but the
Board was unable to duplicate the vibration condition. The Board returned the
Funded by the air carrier's insurer, we leased the same model airliner,
equipped it with cameras, microphones and vibration sensors and conducted test
fights in a remote location with "yours truly " in the jump seat. Video cameras
captured the hatch which was, "intentionally left unsecured in pre-flight,"
flipping up in front of the leading edge of the wing during take off rotation.
Guess what? Severe vibration was created by the hatch sticking up in front of
one wing, which was recorded by equipment in the test airplane. The frequency
and amplitude of the vibration matched the same signals on the accident
airplane's CVR/FDR! We had proved the exact cause of the problem that caused the
We filed, but the Board denied, a Petition For Reconsideration. They said
that the pilot should have maintained flying speed. Yes, the pilot made a
horrible mistake by not maintaining flying speed in a controllable airplane, but
that wasn't the only cause.
The video tape footage and vibration/sound recordings were made into a
documentary film and successfully used as demonstrative evidence to negotiate a
multimillion settlement with other parties.
The NTSB's charter under the Independent Safety Act of 1974, does not empower
the Board to conduct investigations for the purpose of determining all causes
with certainty. NTSB investigations are terminated after finding the "probable"
cause. The NTSB admittedly does not attempt to allocate responsibility to
various parties who may have caused a crash. Its not that NTSB investigators
these days, aren't dedicated and thorough professionals - most of them are. The
unfortunate reality is that they do not always have the funding and manpower to
pinpoint all the causes.
The Probable Cause determination of the NTSB is not based on "evidence." The
determination of proximate cause in a civil liability trial must be based on
competent evidence. The NTSB may consider matters in reaching the probable cause
determination, which could be excluded from evidence in civil litigation,
because hundreds of years of jurisprudence has taught us that certain
information is unreliable.
Unfortunately, for any "operator" involved in an air crash, the NTSB's most
common determination is "Pilot Error." This "buck stops here attitude" is not
controlling in civil litigation where an "operator" can prove all the proximate
causes which contributed to the crash. More than ever before, technological
progress has made aviation safety the responsibility of many parties - to simply
blame the pilot is unfair and inaccurate.
Field investigations result in a factual report, from which the investigator
recommends a probable cause determination to the Board. The Board then reviews
field investigation reports and votes to adopt, reject or modify the probable
cause determination recommended by a Field Investigator.
When the NTSB approves a Field Investigator's Factual Report, their probable
cause determination along with a summary of the relevant facts is published on a
quarterly basis. You can find all such accidents by date and location in "Briefs
of Accident" in the public dockets section of NTSB Headquarters in Washington,
Major accident investigations led by NTSB "Go Teams" are more heavily
documented. Each group chairman prepares a report and submits it to the
Investigator In Charge. The Investigator In Charge in turn, prepares a draft
NTSB Report and submits it to the Board for review. The Board in major airline
disaster cases, and other accidents of great public interest, may conduct public
hearings wherein witnesses are called and interrogated. The Board will then meet
and deliberate to determine probable cause.
After the NTSB reviews the results of a major accident investigation by a "Go
Team," and determines Probable Cause, the results are published in what has been
traditionally called The NTSB "Blue Cover" Report. (It is now actually white
with blue printing.) The NTSB Factual report and the NTSB Blue Cover Report of
the Board are both placed in the public docket at the NTSB Headquarters in
Washington, D.C. They are available to anyone who wants to obtain a copy. In
addition, all of the exhibits and sub-group reports which were part of the
investigations are included in the public docket.
Representative items that can be found in a public docket from a major
accident, include, weather data, witness statements, cockpit voice recorder
transcripts, air traffic control tape transcripts, ground track plots created
from FAA radar raw data, engine tear down reports, diagrams, specifications,
photographs, computer recreations, transcripts of public hearings, etc.
One of the most commendable policies of the NTSB is its practice of placing
all of its final investigative materials in the public docket for anyone to
study. The only items that are kept out are the trade secrets of parties who
have specifically requested that such information be kept confidential and the
Board has approved. Unfortunately, the analytical notes, drafts of various
reports and other preliminary materials created by NTSB Investigators, NTSB
Technical Experts, and party consultants to the NTSB, are either destroyed or
kept in confidential NTSB files which are not placed into the public docket.
For many years, the public had the opportunity to read the transcript of the
cockpit voce recorder as soon as it was transcribed. Interested parties could
listen to the actual CVR tapes and "experts" could scrutinize utterances for
hidden meaning. Now, because on an embarrassing incident and a strong
lobby, the CVR tapes are no longer discoverable. We get only those portions of
the CVR which the Board elects to transcribe and reveal to the public (parental
control?), and only when the Board has completed most of its investigation.
The catalyst which led to these limitations on our access to important CVR
tapes and transcripts was the notorious Delta Flight 1141 "flaps up" accident in
Dallas, Texas. The crew allegedly mispositioned the flaps, while they were
recorded (on the CVR) discussing the physical attributes of a particular female
flight attendant, before take off. A State Court Judge in Texas ordered Delta to
produce the CVR recording which was subsequently broadcast by the media. ALPA
was outraged and threatened a walkout. The NTSB responded to this lobbying
pressure by persuading Congress to amend the Independent Safety Board Act in
1990 to protect the cockpit privacy of airline crews.
NTSB probable cause determinations are not admissible in evidence (49 USC
1441(e)). Private litigants must prove the cause of the crash to a jury without
the benefit of the conclusions of the NTSB accident investigations. Many courts
have allowed the Field Investigator's "Factual Report" into evidence and some
courts have allowed the jury to read the NTSB "Blue Cover" Report. However,
federal courts have begun to follow 49 USC 1441(e) "literally." and have simply
refused to allow the NTSB Blue Cover Report into evidence in airline disaster
litigation (Sioux City United Airlines DC-10 Disaster.) There is support for
this caution because the Blue Cover Report of the Board often has factual
findings intertwined with opinion and analysis such that it would be very
difficult for a Judge to extract purely factual information that will have
meaning for the jury.
Judges have even a greater concern — if they were to simply show the jury
the NTSB Report in all of its finality, juries would simply defer to the
opinions of the federal investigators. Litigants would, in effect, be denied
their right to a jury trial because the jury's prerogatives would be usurped by
the findings of investigators who had investigated a particular accident.
Some people might say, "What's wrong with that?" The investigators know more
about airplanes than jurors. Think about how fair it would be if you had a
complicated auto accident and all the jury cared about was the Highway Patrol
Officer's Report that blamed you?
A relatively new reason why the opinions in NTSB Reports release may not be
admitted into evidence is the fact that lawyers are no longer able to ask NTSB
Investigators why they interpreted the facts the way they did. NTSB Regulations
allow lawyers to take the depositions of the NTSB Investigators, but the
investigators are not permitted to reveal their analysis or express opinions in
the deposition. Thus, private litigants need to have their own experts to
analyze the evidence and reach opinions as to causation.
Based on 20 years experience with such matters, I recommend that any party
implicated in a major air crash, retain an experienced aviation accident
attorney and conduct its own investigation within budgetary limitations. Here's
what should be done:
- An experienced lawyer should meet with a witnesses or party
representatives before the NTSB "interrogation" to insure that the witnesses
understand the manner in which the investigation will proceed and be advised
of their rights.
- It is important to have a previously uninvolved aviation lawyer review the
facts, procedures and known evidence with the party and involved employees, so
that objective facts can be provided in the interview, rather than emotionally
clouded statements which are common after accidents. Survivors of an accident
should not give statements to anyone when on medication or in shock.
- People who've never been "interrogated" benefit from a briefing that
explains the difference between fact, analysis, opinions and conclusions. It
is important to distinguish between what you really know, or what you're
inclined to comment on with confidence, but you really don't "know." Do you
remember a fact or do you have a fuzzy memory? Are you willing to say you
"remember" because putting 2 and 2 together, "that's probably what
- Any person who will give a sworn statement or testify under oath should
understand that the oath simply requires that the witness tell the truth. The
oath does not require that you speculate, volunteer opinions, recall hearsay,
or incriminate yourself.
- Care must be taken to properly preserve evidence, safeguard records, avoid
the spoliation of evidence and protect trade secrets or other proprietary
- If an FAA employee wants to ask questions as part of an NTSB
investigation, get a commitment in writing that nothing divulged will be used
in an Enforcement Action.
- A lawyer can confidentially interview a client-party's employees under the
- Eye and ear witnesses interviewed by the NTSB can also be interviewed by
private party investigators or consultants while the recollections are
- Just as the NTSB will investigate the maintenance and operational history
of an airplane, so can the private consultants and investigators working under
the Attorney's Work Product protection conduct a confidential investigation of
these issues for a concerned party.
- Your attorney should make every effort to locate governmental data
relevant to the crash and preserve it. One cannot assume that the government
will save every relevant tape recording or all critical radar raw data. In one
case, the author demanded in writing that radar raw data showing a mid-air
collision be preserved after the NTSB was done studying it. The data was
destroyed the day after the NTSB left the facility. A Federal Judge approved
the author's motion on behalf of the client, to amend the lawsuit to include a
spoliation of evidence claim against the offending agency, which was very
helpful in subsequent settlement negotiations.
The following is an abbreviated list of information and information sources
which experienced aviation accident lawyers should know how to obtain quickly
after a major accident, in order to assist a client with an independent
- Airworthiness Directives Files
- Service Bulletins and Letters and Instructions
- Advisory Circulars and Other FAA Orders
- General Aviation Inspection Aids
- Patent Applications
- Hazard Reports
- Service Difficulty Reports
- Malfunction Defect Reports
- Overhaul and Maintenance Records
- Annual or Periodic Inspection Records
- Pilot, Airplane, Engine and Propeller Logbooks
- Certified NWS Weather Data
- FAA Facility Logs
- FAA Aircraft Certification Files
- FAA Airman License and Medical Files
- FAA Airman Training Records
- FAA Aircraft Title and Registration Records
- TRACON Radar Raw Data generated by ARTS
- NTAP Radar Raw data from the ARTCC
- Flight Plans and Ship Logs
- Investigative Reports of Federal, State, County and Municipal Law
Enforcement, Emergency, Fire and Rescue Agencies
- Medical Reports (its amazing what is quoted in medical history taken by
- Autopsy Reports
- CAMI Toxicology Reports
- Wreckage Scene Photos
- Wreckage Pattern Videotapes
- Airport Data
- Navigational Charts
- Instrument Approach Plates
- Reports of similar accidents involving similar aircraft or components
- NTSB and ICAO Safety Summaries and Recommendations
- Tape Recordings of "all" communications relevant to the accident flight,
(not just the usual 5 minutes before and 5 minutes after contact with the
NOTE: The issues and recommendations discussed in this article are
based on hypothetical situations and do not constitute legal advice. My
objective is to alert you to some common issues so that you can avoid or
minimize legal trouble. Anyone with an aviation law problem should be guided
by the advice of his or her lawyer, under applicable federal and state laws,
after a full and confidential disclosure of all relevant facts.