Protecting Yourself in an Accident Investigation

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You weren't there. It wasn't your fault. Maybe it's not even your airplane. Yet somehow, you find yourself involved in an NTSB accident investigation. Do you know your legal rights, responsibilities, obligations and risks? Should you volunteer to help, or call your lawyer? Brian Finnegan a professional accident reconstructionist who has participated in scores of such investigations offers the knowledge that you need to protect yourself and your certificate, whether you're a pilot, mechanic, or aircraft owner.

SafetyOn a blustery winter day near the ocean in Kitty Hawk, North Carolina, the first aviation accident investigation of a powered fixed-wing aircraft took place. It happened right after the first powered flight. But Wilbur and Orville Wright had a plan. With that plan they investigated and they learned and their second flight was a little longer. And the third longer yet. They could have been killed on that December 17, 1903, but safety ruled their thoughts and ultimately ruled the day. We have come far in the development of aircraft since then, but does safety always rule our thoughts the way that it did theirs?

I had my first involvement with an aircraft accident as a rookie ramp rat at a busy Rocky Mountain ski resort airport in the mid-70s. Finding his battery dead, the pilot requested a jump-start for his small, single engine aircraft. While the battery was remotely located, it did have two unmarked terminals on the firewall under the left cowl. I didn't presume to know how they were oriented and I followed the pilot's advice on attaching the jumper cables. The engine didn't so much as click. "Reverse the poles," shouted the pilot through the closed cabin door. I wasn't happy. I knew reversing the terminals could be trouble perhaps even cause the battery to explode but I did as I was told and Vrooom she fired right up like new. In the high RPM propwash I disengaged the cables, secured the cowling, and saluted goodbye to this not-so-experienced mountain flyer.

Off he flew toward one of the highest passes on the Continental Divide and crashed into a minivan traveling on the only flat surface for miles around. Nobody was killed and in fact everyone came through in pretty good shape. But was I ever concerned. I was the last person to work on the plane. Had the battery exploded? Did the Dzus fasteners loosen and allow the cowling to separate? I had no idea what happened or what was next and neither did anyone else. And I don't remember my boss hiring me an attorney, either. Ultimately, my worst fears were not realized as, several weeks later, an FAA inspector explained to me that the aircraft had crashed exactly where its performance charts had predicted for that point in the flight. The pilot had not circled for altitude, as a seasoned mountain pilot would, before attempting to cross the pass. The engine was running fine, its cowling intact.

Wow, so this is aviation.


The Accident Investigation Process

A Proactive and Reactive Process

Accident SceneSome call it the worst case scenario: an aircraft accident with serious or fatal injuries to employees, family or clients. Add to those feelings of despair the possibility that the recent maintenance you performed or part you supplied will be the focus of the investigation, at least temporarily, and emotions can run pretty deep. And like most worst case scenarios, it is so incredible that the mere thought of it conjures deep feelings of denial. Unfortunately, the only difference between that kind of loss and denying it could ever happen to you is that the denial is much worse. That is because there is nothing you can do about preventing the event now that it has happened. But the occupants may still need to be rescued! The families must be notified and provided for. The press will call and then the NTSB and the FAA. The records must be safely secured and the press intelligently informed. The NTSB deserves your thoughtful cooperation. But you need to plan and practice for that event because, when it happens, everyone will be counting on you.

By its very nature, an accident investigation is a reactive event. You can and should plan as much as possible, but when you do receive word of the accident, it will likely be at the most inconvenient time. I remember being launched to a New York accident on the day before Father's Day. My wife and daughter gathered around my suitcase and presented me with my long-desired electric grass edger, a bright red bow around its handle. I hated that I would be gone on Father's Day, but that was my job and I have a supportive family. Imagine the people whose job it isn't. The big holidays are the most likely times to see an accident so expect to get notified during Thanksgiving dinner or while the president or chief of maintenance is out of town. They might even be on the aircraft. Your plan must be able to be implemented by anyone and authority to make decisions shared by a broad group. I once heard of a company policy that required the president's approval before an employee was permitted to use any of the company's aircraft. When the need arose to ferry provisions and people to support a rescue effort, the president was unavailable. Yes, the right decision was made and an aircraft was launched, but not without confusion and time lost. Remember: You must presume your key people will not be available during an accident notification. Have a plan that allows for that.

Also, create a central point of contact within your company, at least with regard to dealing with the media, and inform your employees who that person is. While it is important to delegate many of the tasks and responsibilities that will arise, be sure the projects are well coordinated through your central contact point.

Know The Difference Between Fact And Analysis

Facts are information supported by evidence and National Transportation Safety Board (NTSB) investigations are by definition "factual." Their factual reports are a compilation of all the evidence they can gather about a particular investigation. Their investigations are founded on the same footing as objective journalistic writing: Who, What, Where, When, Why and on events which can be perceived by one or more of the five senses. It is not until the completion of the fact gathering process that one can then analyze or form an opinion about the cause of an accident. The NTSB conducts its analytical process internally and confidentially and does not allow outside parties to participate in the development of an accident's probable cause, the outcome of the analytical process. This policy has come under scrutiny over the years and always invites spirited debate when the issue is raised.

The fact gathering process does often include representatives from the major original equipment manufacturers and may include operators, owners, and maintainers as well. Investigations follow a very comprehensive checklist, which must not be abbreviated in the name of hastening the process. While tedious and labor intensive at times, that investigative process assures all aspects of the flight are examined. Even though you may feel a particular scenario pulling you in one direction or another, do not relent. Often, local newspaper articles will quote witnesses and make their statement sound like fact. Ignore it for now. It is analysis and immaterial until all the facts are in. Do not succumb to the temptation to look smart at the outset. You will not look smart. Even if you are right, you will be perceived by those in the know as premature and a loose cannon. Investigations require patience. If you are not patient, send someone else.

The Safety Board recently convened the Rand Corporation to examine the Party system, and other issues, and the NTSB is in a tough spot. Basically, they are overworked and understaffed. Investigations are not expected to get any simpler in the future. In fact, each generation of aircraft has exponentially larger computer dependence than its predecessor and the kinds of technical expertise necessary will dramatically increase. The accidents themselves may decrease, but their complexity will dramatically increase, dragging them out further into the future. The Safety Board cannot afford to allow a safety investigation to degrade into a litigation war, on one hand, and they must have the most knowledgeable and current technical know-how available, on the other. Look for the Safety Board to beef up their internal expertise with some of their new, recently-approved funds, but don't expect a radical change in the status quo anytime soon. In general, the people who already have access to federal investigations don't want anyone else involved. Those that are not permitted want to be. This issue won't go away for a while.

Safety v. Litigation

The NTSB's investigation is about safety. The FAA is the enforcer and the FAA is the only organization specifically allowed to participate in every NTSB investigation. Technical parties to the investigation are there to assist the NTSB and, in absence of the NTSB, often assist the FAA in gathering facts. Party representatives provide technical expertise on their company's product or service, act as a liaison between the Investigator-in-Charge (IIC) and the company in gathering additional information, and are a conduit back to the company for effecting immediate safety improvements.

There is no litigation agenda for the NTSB, or any of the investigation's participants, except to understand that litigation may follow and the way they treat and examine the wreckage may affect the outcome of that litigation. Spoliation is a legal term which means the "intentional alteration or destruction" of a document or component. If you are a party representative, do you think it is reasonable to assume that as long as everything you do is in concert with the wishes of the NTSB, you are free from responsibility for any spoliation of the parts? Well, yes and no. If the parts are within your area of knowledge or expertise, even if your company did not manufacture them, you may have a better understanding of how best to examine or test that part to get reliable results. After all, that is why your technical expertise was included in the investigation in the first place. During litigation, your lack of input to an IIC could be construed as spoliation under cross-examination. I believe that if a party representative has an opinion about how a component should be examined, he should voice it and document his advice. It is the IIC's responsibility to sift through the input and decide the course of action. His position is protected by statute; the party representative's is not.

General Aviation Revitalization Act (GARA)

In the late 1980's, the bottom had pretty much fallen completely out of the general aviation manufacturing market. Piper declared bankruptcy and Cessna departed from the piston engine market entirely. The overall market in all categories was at record lows and the blame was laid squarely at the feet of unchecked product liability litigation. With no age limit on litigating accidents involving old aircraft, manufacturers found themselves defending 40-year-old (and older) aircraft and their designs in court. With the exception of some small manufacturers of piston engine aircraft, the flying community had to rely entirely on refurbished aging aircraft. The pilot's lobbying arm, the Aircraft Owners and Pilots Association (AOPA), along with the General Aviation Manufacturers Association (GAMA), and others petitioned Congress repeatedly until in 1994 Congress passed the General Aviation Revitalization Act (GARA). The act was passed as a jobs-creating initiative in that Cessna promised to resume production of its famous single engine aircraft line, thereby creating hundreds and possibly even thousands of new jobs.

The compromise bill exempted, with several exceptions, aircraft older than 18 years from litigation. Those exceptions included aircraft used for hire and any aircraft in which designs could be proven grossly negligent. Also exempt from the statute were ground injuries cause by aircraft older than 18 years. It sounds pretty simple, but it isn't.

Few aircraft, if any, are 100 percent free of newer parts. Most well maintained aircraft will have new components, which replaced worn out old ones. Engines that have been overhauled have newer parts, as do many airframes. GARA legislation has shifted the legal focus to those services and components that are less than 18 years old, which is ironic. Conventional wisdom is that new parts last longer and wear better than old parts. It's common sense. But since the GARA legislation, attorneys want to know what new parts have been installed so they can be evaluated as potential causes of the accident. Sure, following an accident everyone wants to know what recent maintenance has been performed because of the possibility an improper installation. But over time, that possibility becomes less likely. The large general aviation manufacturers have long had full-time investigator teams to participate with the NTSB in their investigations and with few exceptions, whenever there is a serious or fatal injury accident, they investigate. In the wake of GARA, their focus is on whether or not there are safety issues that need immediate attention and on how the younger components performed. Absent any safety issues, they have a well-documented accident file in the event of future litigation.

The real problems arise for the non-traditional investigative participant: the operator, maintainer, overhauler, and component manufacturer. Even though the litigious focus is finding these companies more and more often, they have not become quick to involve themselves in the early phases of an investigation. Naturally, if the NTSB were to find an issue that directly implicated one of these smaller firms, they would be in contact very quickly, as they would with a major manufacturer. However, litigation does not just flow with the findings of the NTSB, as the large manufacturers can testify. Sometimes the allegations refute or supplement NTSB findings or probable cause. So the question is just how responsive should and can these small companies be?


The Corporate Perspective

The Corporate Investigation Plan

Accident SceneIf you are an aircraft owner or operator, your primary concern is the safety of your customers, your employees, and their families. Taking care of these people during the period immediately following an accident requires a plan because these are not the people making the loudest noise. The press are. The police are. The federal investigators are. Assure that rescue equipment and support gear is enroute and establish a plan that can be implemented without excessive authorization or oversight. Be sure to delegate responsibilities and consider that family members will need to receive compassionate handling, including being notified personally by company personnel as soon as possible. The media will be well ahead of the process if you hesitate or are unprepared. There will be costs and they may be high. Anticipate them and authorize their expenditure. Keep in mind that what you don't spend now in compassionate, good citizenship, you may spend later 100 times over in litigation damages to angry and hurt family members. Its important to remember that whether you win or lose, litigation is very expensive and people tend to sue when they feel they've been treated unfairly. Cooperate fully with the NTSB and the FAA, but get legal advice if you are unsure of the protocol. Join the investigation, if possible, but remain emotionally detached and stick to the facts. The analysis will come later.

Notification

Depending on the urgency your company places on receiving accident notifications, there are numerous ways to learn about them. The Internet has many resources including the FAA's daily listing of accidents with its two-week archive. Some news sites offer automatic email notification of accidents worldwide. With instant access to most national and international newspapers, companies with a regional interest can keep tabs on an area very easily. Don't discount the value of friends and family in getting you the word about an accident. My mother in Florida once called me just hours after an accident that happened in her town. We had not yet been notified and, in fact, were well ahead of the NTSB in researching the local media for the early details.

Another good idea is to develop agreements or Memoranda of Understanding with your clients stating they will inform you whenever they become aware of an accident involving your products or services. These arrangements are helpful for overhaulers who have no way of knowing whether their overhaul is aboard a particular aircraft.

The Media

Just like you, the press have a job to do. If you are straightforward with them and provide the facts as you know them, they will probably treat you fairly. The biggest problem is that most of the press don't know much about aviation and have never covered an aircraft accident before. They are relying on someone with some knowledge to help them out. If you have your wagons circled and are remaining unapproachable, the press will find a local pilot, or mechanic, or witness, or resident with an opinion and then print that. As long as they attribute their source, even if it's anonymous, they are clean. If their story turns out to be inaccurate, you will have twice the trouble refuting the erroneous details and then getting the truth out. Help yourself by helping the press.

Having said that, you must remain in control of the information you release. The press will want analysis and all you have are facts. Tell them that. If you are party to the NTSB investigation, the Safety Board will want to be the single point of contact for disseminating accident information. Tell them that, too. You may share non-accident and other company issues with them and, in fact, a photograph of the aircraft in its pre-mishap condition and some history about your heretofore immaculate safety record might read well. When you do release information to the press, however, be sure everyone in your company understands who the central point of contact is so that there is only one version of the company story.

The NTSB, FAA, and Party Participation

The accident belongs to the NTSB. Even during investigations in which the NTSB does not attend and the FAA conducts the on-scene and follow-up examinations, the NTSB is in charge. All the information is passed to the IIC and the Safety Board IIC provides all the directions on which way the investigation will proceed. This is not to say the NTSB will necessarily micro-manage the FAA's work. It is just that the responsibility rests with the NTSB. Frequently, the NTSB will not have any specific interest in an accident at all and the FAA will. In that case, the FAA, usually in an enforcement process, will conduct their investigation. The FAA does not have the luxury to pick and choose, if you will, the accidents in which they will involve themselves. They are involved in every one and they have their nine points of interest that they must satisfy before closing each investigation.

Let me share few words about the FAA's role in an aircraft accident investigation. The FAA's responsibilities are identified in the Federal Aviation Act of 1958 and are spelled out in FAA Order 8020.11A. Their job is to document and evaluate what happened in each accident and take steps to prevent similar accidents. In addition, they must determine if any of the FAA's responsibilities within the industry, of which there are nine, were a factor in the cause of the accident. Those nine areas include facilities, non-FAA ATC facilities or navaids, airworthiness, airman/agency competency, regulations, standards, security, medical qualifications, and violations. Some of these issues may be of interest to the NTSB IIC.

The NTSB exists by congressional mandate as specified in the Code of Federal Regulations 49 CFR 830 Notification and Reporting of Aircraft Accidents and 49 CFR 831 Accident/Incident Investigation Procedures. (Whew!) Part 830 discusses when and how the NTSB is to be notified of an accident and Part 831 discusses the way in which the investigations will be conducted. Part 831 is the document that governs how the Safety Board selects the parties to participate in an investigation. Did you know you couldn't have your corporate attorney or your insurance adjuster represent you in the investigation? Do you know what your obligations to the investigation are? Did you know that you are entitled to share some or all of the information generated during the investigation? Part 831 details your rights and responsibilities and if you find yourself involved in an investigation, whether you are being investigated or not, you need to know this information. Since Safety Board investigators are not police they do not have to read you your rights. Besides, there are volumes of regulations and if you operate within the national airspace system, your job is to be up on the law.

First a few details. Participation in an NTSB investigation is limited to persons, companies, and organizations that actually have employees, products, or services involved in the accident under investigation. It is the larger organization who actually becomes "party" while the investigator they send is their representative. It is up to the party, once approved for participation, to select their representative. That person must be knowledgeable of the product or service represented and have access to the company personnel most able to effect an immediate safety improvement, if warranted. The representative must also have access to documents, drawings, instructions, etc., as required and requested by the IIC.

Part 831specifically excludes from consideration as party representative claimants or insurers. The rationale is that claimants and insurers have a mandate that is founded on mitigating costs or achieving restitution. In the NTSB's eyes, that type of agenda is incompatible with a safety investigation.

Back in the 1980s, an insurance company created an organization of investigators to represent its clients during an accident investigation. They were called the Association of Manufacturer's Safety Investigators (AMSI). To be sure, these investigators were experienced in the products they represented and few, if any, made a name for themselves advancing theories that were not based on the facts and in the name of safety. But the perception was they were in the pocket of the insurance company for whom they worked. This became an issue with several plaintiff attorneys who were denied the opportunity to represent their clients in the investigation. "Either let us in, or keep them out" was their position.

The chairman of the five-member NTSB at that time was Jim Burnett. He knew he couldn't allow the investigative process to become litigation-oriented, so he chose the plaintiff attorney's latter option. He articulated his ruling in a letter to the manufacturers of general aviation aircraft where he reasoned that only full-time employees of a company could be expected to have the kind of product knowledge and corporate access required of a party representative. From then on, all party representatives would be full-time employees of the company they represented. Many of the AMSI investigators then went to work directly for the manufacturers themselves or for insurance companies.

That policy change was pretty straightforward when the only real participants were the manufacturers and an occasional operator. However, operators, service providers, and component manufacturers are increasingly becoming the focus of safety issues, both during and after an investigation, and they want the same access as the larger manufacturers with respect to being included as party to the investigation. Frequently, the only full-time employees available to these potential participants are executives like the president, the chief pilot, or the director of maintenance. While these people may certainly be knowledgeable on their products, they may be unschooled in investigative technique and protocol, site safety, and the general responsibilities and privileges of party participants. Further, they are often emotionally involved with the aircraft's occupants and often have a very difficult time being objective.

I once hiked across a remote mountain ridge with the president and director of operations of a charter operation involved in an accident with two fatalities. They were party to the investigation, but they didn't understand the obligations of the other participants to keep the findings within the team. They constantly talked about litigation, a no-no for party participants, and were secretive about what they found. There needs to be a middle ground, one that both the Safety Board and the potential litigators can live with, which grants them the right to hire competent, yet independent, investigators to represent them as parties to an NTSB investigation. Chairman Burnett's letter could have the inadvertent affect of preventing knowledgeable on-scene representation of a small company by a qualified, yet neutral, accident investigator, something Chairman Burnett recently told me was not his intention.

The On-Scene Investigation

Imagine you are barefoot and a large glass jar has been knocked from the shelf onto the hard ceramic floor, shattering into thousands of pieces. There certainly is a central point where the largest pieces are, but radiating outward from this central area, probably in one direction more than another, are the many pieces of the jar with their innumerable sharp and piercing edges. Now imagine how you, still barefoot, will go about cleaning it up and you will have the general idea of how to approach the scene of an aircraft accident. First, go slow. Start at the perimeter of the debris field and circle the site. Be very observant, noticing tree and ground scars, paper and wreckage location, etc. Document well with photographs, sketches, and notes. Use a tape recorder to explain your thoughts. Pay close attention to detail as you move closer to the wreckage.

Ground scars are the most perishable evidence you will find. Snow, rain, and visitors to the scene quickly obliterate this key evidence. The first task of the investigator is to make the investigation easier by his presence, not harder. Human curiosity, it seems, draws us to the most dangerous aspects of whatever is holding our attention. Approach an aircraft which is tied down on the ramp with a child or anyone not familiar with the dangers of an aircraft and chances are they will head straight for the propeller. My guess is that most of us in the business are similarly drawn, but know better. I know I am. If you approach the main wreckage straight away, you risk obscuring the very information you came for. Be patient. Take time to understand the direction from which the aircraft came, its in-flight configuration, and the impact sequence.

Follow-up exams are conducted on specific components or during a wreckage layout after the wreckage is recovered. It is the IIC's responsibility to notify all the parties of the event and allow their representative to attend. In advance of the follow-up exam, research is conducted to help identify the specific areas of interest. Drawings and manuals are obtained to be sure the configuration of the system or components is appropriate for the profile of the flight flown. If you represent your company at a wreckage review or component disassembly, document well what you see and ask a lot of questions. Just because you have the expertise to represent your company in the investigation does not mean you are expert on every component examined. Do not allow your pride to prevent you from admitting you need to learn more about a component or, worse, compel you to guess at an answer because you feel you ought to know it. "I don't know." followed directly by "I'll find out." is music to an IIC's ears.

I know war stories are not unique to accident investigators, but sometimes it's hard to believe the other guys working the crash with you have all had three lunar landings. Let me caution you about all that experience you have: Use it, don't advertise it, at least not until you've settled in with an adult beverage at the end of the day. The investigation usually is a time to receive information, not transmit. It seems that when someone is telling stories, the listeners are simply gathering their thoughts for their own bigger, better, higher, faster story. Not much listening and not much learning. Try to stay focused.

Bloodborne Pathogens

Unlike on TV, when people receive serious or fatal injuries in an aircraft accident, it's usually not neat. Blood, body parts, and bodily fluids frequently contaminate a crash site. If you do not have a handle on the kind of dangers posed by bloodborne pathogens, the equipment necessary to protect yourself, and an understanding of Universal Precautions, Stay Out! Just as you cannot afford to deny your company's need to plan for the worst case scenario, you cannot afford to assume the person to whom these fluids and tissue once belonged was not terribly ill. Additionally, and perhaps more importantly, you do not want to bring disease and infection home after the investigation. On-scene, your personal hygiene takes on a monumental significance, far beyond what is normal and acceptable in everyday living. You can get very sick very easily. Get some education and carry the gear you need.

This whole bloodborne pathogens issue is still controversial. In spite of all the dangers, investigators still don't use protective equipment all the time. Sure, when it's convenient and public and the weather is cool, everyone falls in line. However, in rough terrain and in particularly messy cabins, the protocol can fall by the wayside. Though I was not there, I know of one particularly "bad" accident where investigators had to literally throw away their personal clothes because of saturation with blood and body fluids. No biohazard gear was worn, though it was well after the time when everyone carried it with them. "The terrain was too rugged," I was told. "It was too difficult to put on." "Nobody else was wearing it."

Personal decisions are just that. You must make the hard decisions for yourself. Pilots know it. When a copilot takes the controls from a captain to save the aircraft, there cannot be any thought about what the others will say, the credit card bills that are due, or the baby on the way. If it's the right thing to do, then do it, even though you might lose your job in the political fallout that ensues. Aviation is about personal responsibility. To my knowledge, there are no documented cases of severe illness or death to an investigator because of his or her exposure to bloodborne pathogens. I do know of a case of hepatitis C contracted in a foreign city during an investigation.

Payment for Services Rendered

An investigation is often a community effort with volunteers pouring in from every direction, but make no mistake, investigations cost money and are sometimes very expensive. If you are about to spend time or resources and you expect payment, put that issue on the table up front. It is not unreasonable for the Safety Board investigator, given the outpouring of community support, to figure all that help is free. One time after the recovery of an aircraft from a dense stand of palmetto trees, one of the control surfaces was discovered to be missing; though it had been seen at the crash site. One of the local mechanics helping with the recovery went back and retrieved the component. Everything was great until the bill for this mechanic's time showed up. I do think responsibility for these kinds of communication breakdowns should be shared, though. There is a feeling that "if money isn't brought up, perhaps we won't have to pay." It's touchy, so tread lightly.

The goal usually is to get the insurance company, if you can find one, to take responsibility for all expenses. Normally they are more than happy to pay early in the investigation because they probably will have to pay the wreckage recovery fees anyway. Getting involved early will usually allow them arms-length access to the crash site, meaning the IIC will allow them to enter the crash site, document the wreckage, and leave without being privy to the dialogue among the investigators.

The NTSB will sometimes pick up all the costs, but usually, the Safety Board and the parties to the investigation will split the costs of the examination phase of the investigation. Who will pay is a hot issue with the parties, as they are trying to minimize their costs, also. But they are loath to be denied party status and will often pick up whatever part of the tab they must to allow the investigation to progress. There are stories of individual IIC's refusing to allow a party to be represented unless they agree in advance to pay some or all of the investigative expenses, including wreckage recovery from some remote location. I understand this is not Safety Board policy and when these issues have been challenged at the regional or headquarters level, representation has been granted without monetary strings attached.

If the NTSB employs your maintenance services, be sure to identify your shop rate and any incidental expenses for which you expect to be paid. Do not assume you will be paid exorbitant rates just because Uncle Sam is on the job. You could be disappointed. Believe it or not, some maintenance facilities have tried to "get well" during an investigation, charging for the time lost not working on other customers while charging for the actual time on the wreckage. Be nice and be fair.

Information Sharing

Naturally, the greatest benefit the NTSB receives from inviting party participation in an investigation is the wealth of knowledge they do not have to gather themselves. Additionally, the more people looking at a particular scenario, component, or concept, the better the chances of actually getting to the bottom of an accident's cause. (It doesn't hurt that these people are free help, either.) To that end, the statute requires all information generated by the parties to be shared with the IIC. Through the IIC, the parties generally share in all the information gathered by the IIC and the other parties. In many ways it is a benevolent dictatorship.

Prior to the actual sharing of written information, however, are a series of informal discussions among the investigative parties. These frank discussions allow each participant to share feelings, perhaps uncorroborated by the facts to date, in an open and non-threatening environment. Trust is key. Since most of these participants investigate for a living, they see one another all the time at different crash sites. Betrayal of trust granted during an investigation, especially during one of the informal concept discussions, would limit one's ability to be trusted in the future. None of this trust discussion, however, is intended to be a vehicle to cover up a legitimate concern one participant may have. If a concern surfaces, voice it and follow through with the investigation of the issue.

If you go to the press with investigative information, prepare for trouble. The Safety Board insists on being the central point of information gathering and dissemination. This policy has come under attack recently and the final chapter has not yet been written. There seems to be little doubt, though, that only "an 800-pound gorilla" can flaunt Safety Board policy and remain standing. With millions of dollars at stake, the atmosphere is charged with politics. Some believe more information is better than less and that in the end, safety is enhanced. Still, if you are only "an 80-pound chimp," you might find a convenient banana tree to hide behind.

Report Preparation

Following the completion of the on-scene and follow-up portions of the investigation, the NTSB is entitled to a factual report of your findings. This includes a copy of your photographs and field notes, at the very least, and may include a formal text report. They will probably request your analysis of your findings even though the Safety Board will not provide their analysis to you. To a certain extent they are justified in doing so in that your company generated the controlling data anyway. Insofar as they will bear no responsibility for the accuracy of your opinions, except to agree or disagree with it, be very careful. If you calculate a fuel burn rate and base your opinion of how much gas was in the aircraft at the time of the crash, use published tables and calculations. Be conservative and calculate the extremes as well as the central fuel flow rate. When possible, give the involved person or component the benefit of the doubt. Don't put yourself in the position of being a hanging judge.

Normally, manufacturers only provide the Safety Board with that portion of their report that directly relates to their company's product. After all, the airframe representative isn't there to report on the specifics of the engine, for example, even though he may have considerable expertise in that area. However, the represented company usually will want a complete report on the investigation for their files. That report, while not necessarily releasable to the NTSB, is discoverable in litigation. That means that attorneys involved in subsequent litigation of the accident you investigated can subpoena your company for a copy of your report. Your company will likely develop a protective order which will protect proprietary and other information, but the report will probably become part of the case and you may have to defend in court every word you write down. Be sure of your facts. If you provide analysis, be sure to account for all variables.

Litigation

If you are deposed, or interviewed under oath by attorneys, on your participation in a particular investigation, it is important you first have legal counsel discuss the ins and outs of a deposition in general and this deposition in particular. Ideally, your legal representative will be with you during the deposition and can guide you through the process. The golden rule of depositions is to always tell the truth, regardless of what you may perceive the truth means. If you are the investigator, you are hired to collect the facts and unless you are expert in a given area, it could be dangerous to voice your opinion on a particular matter. With a few questions about your education, experience, research, or evidence, a sharp attorney might disqualify your opinion in a matter of minutes. Disqualification, or impeachment, of your opinion will cast a long, dark shadow over the rest of your testimony. After all, if you are willing to not only form, but also proffer, an opinion that has become suspect, then how reliable can the rest of your testimony be?

In short, it may be best to save documented interpretation of the facts for the experts. Experts are hired to examine the facts, conduct their own additional research, generate additional facts, develop findings, form opinions, and specify the bases for those opinions. Their credentials are often superlative as is their ability to convey their opinions in language easily understood by a non-technical jury.


The Maintainer's Perspective

The Emphasis on Paperwork and Training

Accident SceneThe regulations require you to know how to do what you are doing before you do it. If you have never done it before, you need to do it under the supervision of someone who knows how to do it. Pretty simple. But take it to the next step and be able to prove it. Keep your own records of the work you do and recognize the link between the experience you have and the work you are about to do. The documentation of the work you have done will be picked apart, word by word, by investigators following an accident.

Consider this possible fallacy: If the tray table on your flight to L.A is broken, the airline must do lousy engine maintenance. The logic is that since it is so simple to keep a basic tray table in working order, and the company doesn't do it, then how can they possibly maintain those big, complicated engines out there on the wing. Passengers worry when they see sloppiness because they think it is an indicator of the operation in general. Those same passengers become jurors and if your paperwork is sloppy, they may think you do sloppy work and are possibly culpable in causing or helping cause the crash. They may be right. It's trite, but it's true: The work is not done until the paperwork is done. Treat your records as significant documents because juries will presume your paperwork is a reflection of your maintenance work and if it looks bad, they will hang you.

On the other hand, I know an investigation in which the maintenance records were impeccable. The IIC and the parties were so impressed at every turn that when it came time to decide whether to continue to focus on aircraft maintenance or to move on to other issues, the decision was to move on.

Training and Your Library

How well are you prepared to do your job? You have gotten the training, which prepares you for the task ahead, and you have access to the maintenance documentation. You must have immediate access to those materials, however, and you must use them. It is not enough to have microfiche in a drawer or down the street. Just because you have overhauled an engine before, even if you've done it many times, it is crucial you not only have the proper manuals and instructions available, but that you use them. The best mechanics do. These are the checklists of the trade and are integral to safe flight operations. Good mechanics have the talent to do quality work and the desire to set a standard for excellence. Bring the two together in one professional package.

Some accidents happen over and over again. Investigators know the profiles of common mistakes mechanics and others make and when the pieces fall together, it is common to explore those characteristics first. One such maintenance action involved compliance with the overhaul manual and several service instructions during maintenance. When the aircraft lost power after an hour of flight and crashed, without injury, the profile came together for the investigators. When asked to produce the publications the mechanics had used, there was confusion as to what and where they were. This only a day after the performance of the maintenance. It quickly became obvious that the publications were not used.

Service Bulletin Compliance

Service bulletins are optional, right? Well, maybe. Taking cover in a tornado is optional, too. If you survive it, no one will ticket you. If not, oh, well.

Airframe, engine, and component manufacturers recommend their products be maintained in specific ways. Manufacturers have a vested interest in seeing their products perform the way they say they will and last as long as they say they will. To that end they publish detailed manuals that specify the way to care for those products. There is no future in their developing maintenance requirements that do not help achieve the above goals. Sometimes in the course of producing a product, a manufacturer will develop an improvement or recognize a flaw in its product or published documentation. When that occurs, with and without respect to FAA input, those manufacturers will publish maintenance advisories. These advisories are published with a wide variety of criticality, but generally begin, depending on the manufacturer, with Service Letters or Service Instructions. These notices often address approved techniques or materials. Their compliance may be conditional after a particular event. Service Bulletins and Mandatory Service Bulletins normally reflect a maintenance procedure that the manufacturer not only considers important, but also reflect safety of flight issues that require compliance within a certain time frame.

However, there is serious debate among operators of this airborne equipment about whether or not to comply with these manufacturer's recommendations. (Interestingly, almost all these people believe you should duck when walking through a low doorway.) This is because parallel to and separate from the manufacturer's bulletins, the FAA has a system of Airworthiness Directives which require operator compliance by law. Because the manufacturer's bulletins don't carry the weight of law, many operators perceive these advisories as optional and unnecessary. The Federal Aviation Regulations do require maintenance to be performed in accordance with the manufacturer's maintenance manual and some manufacturers have specified their maintenance manual includes all service letters, instructions and bulletins. Like all regulations, a legal interpretation of what that means for each individual issue would be necessary.

So what' a mechanic to do? It's the owner's aircraft and the ADs are complied with. You can't make the owner comply, but you do feel he ought to comply. First, know what the regulations demand. Read them and discuss their meaning with the operator. Set your own standards. Determine how appropriate a service bulletin is and discuss that also. Bring potential safety issues to the attention of the operator and gain his perspective. If the operator does not wish the bulletin complied with, fine. Note that fact in the logbook, write "Do Not Comply," and ask the operator to sign it. Take the burden off your shoulders and put it with the decision-maker. Again, keep good records and document your advice as well as your activities.

Post-Accident Involvement

Following an accident, you will want to look back at your work records to see if you could possibly be involved. That's okay because you have been keeping your records in good order and your history of maintenance will be easy to follow. If you notice a discrepancy, a missed signature, an incorrect date, or a missing entry, don't fix it. Make a note in your personal records and bring the matter to the attention of the appropriate people: supervision, FAA, and/or NTSB. The date and time of the crash mark a point beyond which maintenance or other entries could be construed as alteration of the logbooks. You will have every opportunity to explain human inconsistencies and even if it appears you are in more grievous error, it will only be made worse by the alteration. Be cooperative with the FAA and the NTSB. If your work becomes the focus of the investigation, be careful not to assume custody of the components in question without proper security measures taken. If you are the focus, be polite, but get legal counsel. Even though the Safety Board's report is not admissible in court, the IIC's deposition is, and anything you tell the IIC can be discovered during deposition.

Hey, be careful out there. Many lives are at stake maybe even your own.