On a blustery winter day near the ocean inKitty Hawk, North Carolina, the first aviation accident investigation of a poweredfixed-wing aircraft took place. It happened right after the first powered flight. ButWilbur and Orville Wright had a plan. With that plan they investigated and they learnedand their second flight was a little longer. And the third longer yet. They could havebeen killed on that December 17, 1903, but safety ruled their thoughts and ultimatelyruled the day. We have come far in the development of aircraft since then, but does safetyalways 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 busyRocky Mountain ski resort airport in the mid-70s. Finding his battery dead, the pilotrequested a jump-start for his small, single engine aircraft. While the battery wasremotely 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 onattaching the jumper cables. The engine didn’t so much as click. “Reverse thepoles,” shouted the pilot through the closed cabin door. I wasn’t happy. I knewreversing 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 highRPM propwash I disengaged the cables, secured the cowling, and saluted goodbye to thisnot-so-experienced mountain flyer.
Off he flew toward one of the highest passes on the Continental Divide and crashed intoa minivan traveling on the only flat surface for miles around. Nobody was killed and infact everyone came through in pretty good shape. But was I ever concerned. I was the lastperson to work on the plane. Had the battery exploded? Did the Dzus fasteners loosen andallow the cowling to separate? I had no idea what happened or what was next and neitherdid 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 methat the aircraft had crashed exactly where its performance charts had predicted for thatpoint in the flight. The pilot had not circled for altitude, as a seasoned mountain pilotwould, before attempting to cross the pass. The engine was running fine, its cowlingintact.
Wow, so this is aviation.
The Accident Investigation Process
A Proactive and Reactive Process
Some call it the worst case scenario: an aircraft accident withserious or fatal injuries to employees, family or clients. Add to those feelings ofdespair the possibility that the recent maintenance you performed or part you suppliedwill be the focus of the investigation, at least temporarily, and emotions can run prettydeep. And like most worst case scenarios, it is so incredible that the mere thought of itconjures deep feelings of denial. Unfortunately, the only difference between that kind ofloss and denying it could ever happen to you is that the denial is much worse. That isbecause 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 providedfor. The press will call and then the NTSB and the FAA. The records must be safely securedand the press intelligently informed. The NTSB deserves your thoughtful cooperation. Butyou need to plan and practice for that event because, when it happens, everyone will becounting on you.
By its very nature, an accident investigation is a reactive event. You can and shouldplan as much as possible, but when you do receive word of the accident, it will likely beat the most inconvenient time. I remember being launched to a New York accident on the daybefore Father’s Day. My wife and daughter gathered around my suitcase and presented mewith my long-desired electric grass edger, a bright red bow around its handle. I hatedthat 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 seean accident – so expect to get notified during Thanksgiving dinner or while thepresident or chief of maintenance is out of town. They might even be on the aircraft. Yourplan must be able to be implemented by anyone and authority to make decisions shared by abroad group. I once heard of a company policy that required the president’s approvalbefore an employee was permitted to use any of the company’s aircraft. When the need aroseto 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 confusionand time lost. Remember: You must presume your key people will not be available during anaccident notification. Have a plan that allows for that.
Also, create a central point of contact within your company, at least with regard todealing with the media, and inform your employees who that person is. While it isimportant to delegate many of the tasks and responsibilities that will arise, be sure theprojects 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 acompilation of all the evidence they can gather about a particular investigation. Theirinvestigations 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 fivesenses. It is not until the completion of the fact gathering process that one can thenanalyze or form an opinion about the cause of an accident. The NTSB conducts itsanalytical process internally and confidentially and does not allow outside parties toparticipate in the development of an accident’s probable cause, the outcome of theanalytical process. This policy has come under scrutiny over the years and always invitesspirited debate when the issue is raised.
The fact gathering process does often include representatives from the major originalequipment manufacturers and may include operators, owners, and maintainers as well.Investigations follow a very comprehensive checklist, which must not be abbreviated in thename of hastening the process. While tedious and labor intensive at times, thatinvestigative process assures all aspects of the flight are examined. Even though you mayfeel 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 notsuccumb to the temptation to look smart at the outset. You will not look smart. Even ifyou 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 andunderstaffed. Investigations are not expected to get any simpler in the future. In fact,each generation of aircraft has exponentially larger computer dependence than itspredecessor and the kinds of technical expertise necessary will dramatically increase. Theaccidents themselves may decrease, but their complexity will dramatically increase,dragging them out further into the future. The Safety Board cannot afford to allow asafety investigation to degrade into a litigation war, on one hand, and they must have themost knowledgeable and current technical know-how available, on the other. Look for theSafety Board to beef up their internal expertise with some of their new, recently-approvedfunds, but don’t expect a radical change in the status quo anytime soon. In general, thepeople 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 theonly organization specifically allowed to participate in every NTSB investigation.Technical parties to the investigation are there to assist the NTSB and, in absence of theNTSB, often assist the FAA in gathering facts. Party representatives provide technicalexpertise on their company’s product or service, act as a liaison between theInvestigator-in-Charge (IIC) and the company in gathering additional information, and area 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 thewreckage may affect the outcome of that litigation. Spoliation is a legal term which meansthe “intentional alteration or destruction” of a document or component. If youare a party representative, do you think it is reasonable to assume that as long aseverything you do is in concert with the wishes of the NTSB, you are free fromresponsibility for any spoliation of the parts? Well, yes and no. If the parts are withinyour area of knowledge or expertise, even if your company did not manufacture them, youmay have a better understanding of how best to examine or test that part to get reliableresults. After all, that is why your technical expertise was included in the investigationin the first place. During litigation, your lack of input to an IIC could be construed asspoliation under cross-examination. I believe that if a party representative has anopinion about how a component should be examined, he should voice it and document hisadvice. It is the IIC’s responsibility to sift through the input and decide the course ofaction. 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 generalaviation manufacturing market. Piper declared bankruptcy and Cessna departed from thepiston engine market entirely. The overall market in all categories was at record lows andthe blame was laid squarely at the feet of unchecked product liability litigation. With noage limit on litigating accidents involving old aircraft, manufacturers found themselvesdefending 40-year-old (and older) aircraft and their designs in court. With the exceptionof some small manufacturers of piston engine aircraft, the flying community had to relyentirely on refurbished aging aircraft. The pilot’s lobbying arm, the Aircraft Owners andPilots Association (AOPA), along with the General Aviation Manufacturers Association(GAMA), and others petitioned Congress repeatedly until in 1994 Congress passed theGeneral Aviation Revitalization Act (GARA). The act was passed as a jobs-creatinginitiative in that Cessna promised to resume production of its famous single engineaircraft line, thereby creating hundreds and possibly even thousands of new jobs.
The compromise bill exempted, with several exceptions, aircraft older than 18 yearsfrom litigation. Those exceptions included aircraft used for hire and any aircraft inwhich designs could be proven grossly negligent. Also exempt from the statute were groundinjuries 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 maintainedaircraft will have new components, which replaced worn out old ones. Engines that havebeen overhauled have newer parts, as do many airframes. GARA legislation has shifted thelegal focus to those services and components that are less than 18 years old, which isironic. 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 partshave 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 performedbecause of the possibility an improper installation. But over time, that possibilitybecomes less likely. The large general aviation manufacturers have long had full-timeinvestigator teams to participate with the NTSB in their investigations and with fewexceptions, whenever there is a serious or fatal injury accident, they investigate. In thewake of GARA, their focus is on whether or not there are safety issues that need immediateattention and on how the younger components performed. Absent any safety issues, they havea well-documented accident file in the event of future litigation.
The real problems arise for the non-traditional investigative participant: theoperator, maintainer, overhauler, and component manufacturer. Even though the litigiousfocus is finding these companies more and more often, they have not become quick toinvolve themselves in the early phases of an investigation. Naturally, if the NTSB were tofind an issue that directly implicated one of these smaller firms, they would be incontact very quickly, as they would with a major manufacturer. However, litigation doesnot 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 thequestion is just how responsive should and can these small companies be?
The Corporate Perspective
The Corporate Investigation Plan
If you are an aircraft owner or operator, your primary concern isthe safety of your customers, your employees, and their families. Taking care of thesepeople during the period immediately following an accident requires a plan because theseare not the people making the loudest noise. The press are. The police are. The federalinvestigators are. Assure that rescue equipment and support gear is enroute and establisha plan that can be implemented without excessive authorization or oversight. Be sure todelegate responsibilities and consider that family members will need to receivecompassionate handling, including being notified personally by company personnel as soonas possible. The media will be well ahead of the process if you hesitate or areunprepared. There will be costs and they may be high. Anticipate them and authorize theirexpenditure. Keep in mind that what you don’t spend now in compassionate, goodcitizenship, you may spend later 100 times over in litigation damages to angry and hurtfamily members. Its important to remember that whether you win or lose, litigation is veryexpensive and people tend to sue when they feel they’ve been treated unfairly. Cooperatefully 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 thefacts. The analysis will come later.
Depending on the urgency your company places on receiving accident notifications, thereare numerous ways to learn about them. The Internet has many resources including the FAA’sdaily listing of accidents with its two-week archive. Some news sites offer automaticemail notification of accidents worldwide. With instant access to most national andinternational newspapers, companies with a regional interest can keep tabs on an area veryeasily. Don’t discount the value of friends and family in getting you the word about anaccident. My mother in Florida once called me just hours after an accident that happenedin her town. We had not yet been notified and, in fact, were well ahead of the NTSB inresearching the local media for the early details.
Another good idea is to develop agreements or Memoranda of Understanding with yourclients stating they will inform you whenever they become aware of an accident involvingyour products or services. These arrangements are helpful for overhaulers who have no wayof knowing whether their overhaul is aboard a particular aircraft.
Just like you, the press have a job to do. If you are straightforward with them andprovide the facts as you know them, they will probably treat you fairly. The biggestproblem is that most of the press don’t know much about aviation and have never covered anaircraft accident before. They are relying on someone with some knowledge to help themout. If you have your wagons circled and are remaining unapproachable, the press will finda 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 theirstory turns out to be inaccurate, you will have twice the trouble refuting the erroneousdetails 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 presswill want analysis and all you have are facts. Tell them that. If you are party to theNTSB investigation, the Safety Board will want to be the single point of contact fordisseminating accident information. Tell them that, too. You may share non-accident andother company issues with them and, in fact, a photograph of the aircraft in itspre-mishap condition and some history about your heretofore immaculate safety record mightread well. When you do release information to the press, however, be sure everyone in yourcompany understands who the central point of contact is so that there is only one versionof the company story.
The NTSB, FAA, and Party Participation
The accident belongs to the NTSB. Even during investigations in which the NTSB does notattend and the FAA conducts the on-scene and follow-up examinations, the NTSB is incharge. All the information is passed to the IIC and the Safety Board IIC provides all thedirections on which way the investigation will proceed. This is not to say the NTSB willnecessarily micro-manage the FAA’s work. It is just that the responsibility rests with theNTSB. Frequently, the NTSB will not have any specific interest in an accident at all andthe FAA will. In that case, the FAA, usually in an enforcement process, will conduct theirinvestigation. The FAA does not have the luxury to pick and choose, if you will, theaccidents in which they will involve themselves. They are involved in every one and theyhave their nine points of interest that they must satisfy before closing eachinvestigation.
Let me share few words about the FAA’s role in an aircraft accident investigation. TheFAA’s responsibilities are identified in the Federal Aviation Act of 1958 and are spelledout in FAA Order 8020.11A. Their job is to document and evaluate what happened in eachaccident and take steps to prevent similar accidents. In addition, they must determine ifany of the FAA’s responsibilities within the industry, of which there are nine, were afactor in the cause of the accident. Those nine areas include facilities, non-FAA ATCfacilities or navaids, airworthiness, airman/agency competency, regulations, standards,security, medical qualifications, and violations. Some of these issues may be of interestto the NTSB IIC.
The NTSB exists by congressional mandate as specified in the Code of FederalRegulations 49 CFR 830 Notification and Reporting of Aircraft Accidents and 49 CFR 831Accident/Incident Investigation Procedures. (Whew!) Part 830 discusses when and how theNTSB is to be notified of an accident and Part 831 discusses the way in which theinvestigations will be conducted. Part 831 is the document that governs how the SafetyBoard selects the parties to participate in an investigation. Did you know you couldn’thave your corporate attorney or your insurance adjuster represent you in theinvestigation? Do you know what your obligations to the investigation are? Did you knowthat you are entitled to share some or all of the information generated during theinvestigation? Part 831 details your rights and responsibilities and if you find yourselfinvolved in an investigation, whether you are being investigated or not, you need to knowthis information. Since Safety Board investigators are not police – they do not have toread you your rights. Besides, there are volumes of regulations and if you operate withinthe 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 involvedin the accident under investigation. It is the larger organization who actually becomes”party” while the investigator they send is their representative. It is up tothe party, once approved for participation, to select their representative. That personmust be knowledgeable of the product or service represented and have access to the companypersonnel most able to effect an immediate safety improvement, if warranted. Therepresentative must also have access to documents, drawings, instructions, etc., asrequired and requested by the IIC.
Part 831specifically excludes from consideration as party representative claimants orinsurers. The rationale is that claimants and insurers have a mandate that is founded onmitigating costs or achieving restitution. In the NTSB’s eyes, that type of agenda isincompatible with a safety investigation.
Back in the 1980s, an insurance company created an organization of investigators torepresent its clients during an accident investigation. They were called the Associationof Manufacturer’s Safety Investigators (AMSI). To be sure, these investigators wereexperienced in the products they represented and few, if any, made a name for themselvesadvancing theories that were not based on the facts and in the name of safety. But theperception was they were in the pocket of the insurance company for whom they worked. Thisbecame an issue with several plaintiff attorneys who were denied the opportunity torepresent their clients in the investigation. “Either let us in, or keep themout” was their position.
The chairman of the five-member NTSB at that time was Jim Burnett. He knew he couldn’tallow the investigative process to become litigation-oriented, so he chose the plaintiffattorney’s latter option. He articulated his ruling in a letter to the manufacturers ofgeneral aviation aircraft where he reasoned that only full-time employees of a companycould be expected to have the kind of product knowledge and corporate access required of aparty representative. From then on, all party representatives would be full-time employeesof the company they represented. Many of the AMSI investigators then went to work directlyfor the manufacturers themselves or for insurance companies.
That policy change was pretty straightforward when the only real participants were themanufacturers and an occasional operator. However, operators, service providers, andcomponent manufacturers are increasingly becoming the focus of safety issues, both duringand after an investigation, and they want the same access as the larger manufacturers withrespect to being included as party to the investigation. Frequently, the only full-timeemployees available to these potential participants are executives like the president, thechief pilot, or the director of maintenance. While these people may certainly beknowledgeable on their products, they may be unschooled in investigative technique andprotocol, site safety, and the general responsibilities and privileges of partyparticipants. Further, they are often emotionally involved with the aircraft’s occupantsand often have a very difficult time being objective.
I once hiked across a remote mountain ridge with the president and director ofoperations of a charter operation involved in an accident with two fatalities. They wereparty to the investigation, but they didn’t understand the obligations of the otherparticipants to keep the findings within the team. They constantly talked aboutlitigation, 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 potentiallitigators 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’sletter could have the inadvertent affect of preventing knowledgeable on-scenerepresentation 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 thehard ceramic floor, shattering into thousands of pieces. There certainly is a centralpoint where the largest pieces are, but radiating outward from this central area, probablyin one direction more than another, are the many pieces of the jar with their innumerablesharp and piercing edges. Now imagine how you, still barefoot, will go about cleaning itup and you will have the general idea of how to approach the scene of an aircraftaccident. 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 yourthoughts. 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 visitorsto the scene quickly obliterate this key evidence. The first task of the investigator isto 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 anaircraft which is tied down on the ramp with a child – or anyone not familiar withthe dangers of an aircraft – and chances are they will head straight for thepropeller. My guess is that most of us in the business are similarly drawn, but knowbetter. I know I am. If you approach the main wreckage straight away, you risk obscuringthe very information you came for. Be patient. Take time to understand the direction fromwhich the aircraft came, its in-flight configuration, and the impact sequence.
Follow-up exams are conducted on specific components or during a wreckage layout afterthe wreckage is recovered. It is the IIC’s responsibility to notify all the parties of theevent and allow their representative to attend. In advance of the follow-up exam, researchis conducted to help identify the specific areas of interest. Drawings and manuals areobtained to be sure the configuration of the system or components is appropriate for theprofile of the flight flown. If you represent your company at a wreckage review orcomponent disassembly, document well what you see and ask a lot of questions. Just becauseyou have the expertise to represent your company in the investigation does not mean youare expert on every component examined. Do not allow your pride to prevent you fromadmitting you need to learn more about a component or, worse, compel you to guess at ananswer because you feel you ought to know it. “I don’t know.” followed directlyby “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 tobelieve the other guys working the crash with you have all had three lunar landings. Letme caution you about all that experience you have: Use it, don’t advertise it, at leastnot until you’ve settled in with an adult beverage at the end of the day. Theinvestigation usually is a time to receive information, not transmit. It seems that whensomeone is telling stories, the listeners are simply gathering their thoughts for theirown bigger, better, higher, faster story. Not much listening and not much learning. Try tostay focused.
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 crashsite. 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 UniversalPrecautions, Stay Out! Just as you cannot afford to deny your company’s need to plan forthe worst case scenario, you cannot afford to assume the person to whom these fluids andtissue once belonged was not terribly ill. Additionally, and perhaps more importantly, youdo not want to bring disease and infection home after the investigation. On-scene, yourpersonal hygiene takes on a monumental significance, far beyond what is normal andacceptable in everyday living. You can get very sick very easily. Get some education andcarry the gear you need.
This whole bloodborne pathogens issue is still controversial. In spite of all thedangers, investigators still don’t use protective equipment all the time. Sure, when it’sconvenient and public and the weather is cool, everyone falls in line. However, in roughterrain and in particularly messy cabins, the protocol can fall by the wayside. Though Iwas not there, I know of one particularly “bad” accident where investigators hadto literally throw away their personal clothes because of saturation with blood and bodyfluids. No biohazard gear was worn, though it was well after the time when everyonecarried it with them. “The terrain was too rugged,” I was told. “It was toodifficult to put on.” “Nobody else was wearing it.”
Personal decisions are just that. You must make the hard decisions for yourself. Pilotsknow it. When a copilot takes the controls from a captain to save the aircraft, therecannot 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 mightlose your job in the political fallout that ensues. Aviation is about personalresponsibility. To my knowledge, there are no documented cases of severe illness or deathto an investigator because of his or her exposure to bloodborne pathogens. I do know of acase 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 everydirection, but make no mistake, investigations cost money and are sometimes veryexpensive. If you are about to spend time or resources and you expect payment, put thatissue 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 afterthe recovery of an aircraft from a dense stand of palmetto trees, one of the controlsurfaces was discovered to be missing; though it had been seen at the crash site. One ofthe 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 thinkresponsibility for these kinds of communication breakdowns should be shared, though. Thereis 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 takeresponsibility for all expenses. Normally they are more than happy to pay early in theinvestigation 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 leavewithout being privy to the dialogue among the investigators.
The NTSB will sometimes pick up all the costs, but usually, the Safety Board and theparties to the investigation will split the costs of the examination phase of theinvestigation. Who will pay is a hot issue with the parties, as they are trying tominimize their costs, also. But they are loath to be denied party status and will oftenpick up whatever part of the tab they must to allow the investigation to progress. Thereare stories of individual IIC’s refusing to allow a party to be represented unless theyagree in advance to pay some or all of the investigative expenses, including wreckagerecovery from some remote location. I understand this is not Safety Board policy and whenthese issues have been challenged at the regional or headquarters level, representationhas been granted without monetary strings attached.
If the NTSB employs your maintenance services, be sure to identify your shop rate andany incidental expenses for which you expect to be paid. Do not assume you will be paidexorbitant rates just because Uncle Sam is on the job. You could be disappointed. Believeit or not, some maintenance facilities have tried to “get well” during aninvestigation, charging for the time lost not working on other customers while chargingfor the actual time on the wreckage. Be nice and be fair.
Naturally, the greatest benefit the NTSB receives from inviting party participation inan 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, thebetter the chances of actually getting to the bottom of an accident’s cause. (It doesn’thurt that these people are free help, either.) To that end, the statute requires allinformation generated by the parties to be shared with the IIC. Through the IIC, theparties 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 informaldiscussions among the investigative parties. These frank discussions allow eachparticipant to share feelings, perhaps uncorroborated by the facts to date, in an open andnon-threatening environment. Trust is key. Since most of these participants investigatefor a living, they see one another all the time at different crash sites. Betrayal oftrust granted during an investigation, especially during one of the informal conceptdiscussions, would limit one’s ability to be trusted in the future. None of this trustdiscussion, however, is intended to be a vehicle to cover up a legitimate concern oneparticipant may have. If a concern surfaces, voice it and follow through with theinvestigation of the issue.
If you go to the press with investigative information, prepare for trouble. The SafetyBoard insists on being the central point of information gathering and dissemination. Thispolicy 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” canflaunt Safety Board policy and remain standing. With millions of dollars at stake, theatmosphere is charged with politics. Some believe more information is better than less andthat 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.
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 yourphotographs and field notes, at the very least, and may include a formal text report. Theywill probably request your analysis of your findings even though the Safety Board will notprovide their analysis to you. To a certain extent they are justified in doing so in thatyour company generated the controlling data anyway. Insofar as they will bear noresponsibility for the accuracy of your opinions, except to agree or disagree with it, bevery careful. If you calculate a fuel burn rate and base your opinion of how much gas wasin the aircraft at the time of the crash, use published tables and calculations. Beconservative and calculate the extremes as well as the central fuel flow rate. Whenpossible, give the involved person or component the benefit of the doubt. Don’t putyourself in the position of being a hanging judge.
Normally, manufacturers only provide the Safety Board with that portion of their reportthat directly relates to their company’s product. After all, the airframe representativeisn’t there to report on the specifics of the engine, for example, even though he may haveconsiderable expertise in that area. However, the represented company usually will want acomplete report on the investigation for their files. That report, while not necessarilyreleasable to the NTSB, is discoverable in litigation. That means that attorneys involvedin subsequent litigation of the accident you investigated can subpoena your company for acopy of your report. Your company will likely develop a protective order which willprotect proprietary and other information, but the report will probably become part of thecase 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.
If you are deposed, or interviewed under oath by attorneys, on your participation in aparticular investigation, it is important you first have legal counsel discuss the ins andouts of a deposition in general and this deposition in particular. Ideally, your legalrepresentative will be with you during the deposition and can guide you through theprocess. The golden rule of depositions is to always tell the truth, regardless of whatyou may perceive the truth means. If you are the investigator, you are hired to collectthe facts and unless you are expert in a given area, it could be dangerous to voice youropinion 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 ofminutes. Disqualification, or impeachment, of your opinion will cast a long, dark shadowover the rest of your testimony. After all, if you are willing to not only form, but alsoproffer, an opinion that has become suspect, then how reliable can the rest of yourtestimony be?
In short, it may be best to save documented interpretation of the facts for theexperts. Experts are hired to examine the facts, conduct their own additional research,generate additional facts, develop findings, form opinions, and specify the bases forthose opinions. Their credentials are often superlative as is their ability to conveytheir opinions in language easily understood by a non-technical jury.
The Maintainer’s Perspective
The Emphasis on Paperwork and Training
The regulations require you to know how to do what you are doingbefore you do it. If you have never done it before, you need to do it under thesupervision of someone who knows how to do it. Pretty simple. But take it to the next stepand be able to prove it. Keep your own records of the work you do and recognize the linkbetween the experience you have and the work you are about to do. The documentation of thework you have done will be picked apart, word by word, by investigators following anaccident.
Consider this possible fallacy: If the tray table on your flight to L.A is broken, theairline must do lousy engine maintenance. The logic is that since it is so simple to keepa basic tray table in working order, and the company doesn’t do it, then how can theypossibly maintain those big, complicated engines out there on the wing. Passengers worrywhen they see sloppiness because they think it is an indicator of the operation ingeneral. Those same passengers become jurors and if your paperwork is sloppy, they maythink 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 isdone. Treat your records as significant documents because juries will presume yourpaperwork is a reflection of your maintenance work and if it looks bad, they will hangyou.
On the other hand, I know an investigation in which the maintenance records wereimpeccable. The IIC and the parties were so impressed at every turn that when it came timeto decide whether to continue to focus on aircraft maintenance or to move on to otherissues, 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 preparesyou for the task ahead, and you have access to the maintenance documentation. You musthave immediate access to those materials, however, and you must use them. It is not enoughto have microfiche in a drawer or down the street. Just because you have overhauled anengine before, even if you’ve done it many times, it is crucial you not only have theproper 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. Goodmechanics have the talent to do quality work and the desire to set a standard forexcellence. Bring the two together in one professional package.
Some accidents happen over and over again. Investigators know the profiles of commonmistakes mechanics and others make and when the pieces fall together, it is common toexplore those characteristics first. One such maintenance action involved compliance withthe overhaul manual and several service instructions during maintenance. When the aircraftlost power after an hour of flight and crashed, without injury, the profile came togetherfor 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 performanceof 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 isoptional, too. If you survive it, no one will ticket you. If not, oh, well.
Airframe, engine, and component manufacturers recommend their products be maintained inspecific ways. Manufacturers have a vested interest in seeing their products perform theway they say they will and last as long as they say they will. To that end they publishdetailed manuals that specify the way to care for those products. There is no future intheir developing maintenance requirements that do not help achieve the above goals.Sometimes in the course of producing a product, a manufacturer will develop an improvementor recognize a flaw in its product or published documentation. When that occurs, with andwithout 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 noticesoften address approved techniques or materials. Their compliance may be conditional aftera particular event. Service Bulletins and Mandatory Service Bulletins normally reflect amaintenance procedure that the manufacturer not only considers important, but also reflectsafety of flight issues that require compliance within a certain time frame.
However, there is serious debate among operators of this airborne equipment aboutwhether or not to comply with these manufacturer’s recommendations. (Interestingly, almostall these people believe you should duck when walking through a low doorway.) This isbecause parallel to and separate from the manufacturer’s bulletins, the FAA has a systemof Airworthiness Directives which require operator compliance by law. Because themanufacturer’s bulletins don’t carry the weight of law, many operators perceive theseadvisories as optional and unnecessary. The Federal Aviation Regulations do requiremaintenance to be performed in accordance with the manufacturer’s maintenance manual andsome manufacturers have specified their maintenance manual includes all service letters,instructions and bulletins. Like all regulations, a legal interpretation of what thatmeans 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. Youcan’t make the owner comply, but you do feel he ought to comply. First, know what theregulations demand. Read them and discuss their meaning with the operator. Set your ownstandards. Determine how appropriate a service bulletin is and discuss that also. Bringpotential safety issues to the attention of the operator and gain his perspective. If theoperator 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 yourshoulders and put it with the decision-maker. Again, keep good records and document youradvice as well as your activities.
Following an accident, you will want to look back at your work records to see if youcould possibly be involved. That’s okay because you have been keeping your records in goodorder 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 inyour 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 whichmaintenance or other entries could be construed as alteration of the logbooks. You willhave every opportunity to explain human inconsistencies and even if it appears you are inmore grievous error, it will only be made worse by the alteration. Be cooperative with theFAA and the NTSB. If your work becomes the focus of the investigation, be careful not toassume custody of the components in question without proper security measures taken. Ifyou are the focus, be polite, but get legal counsel. Even though the Safety Board’s reportis not admissible in court, the IIC’s deposition is, and anything you tell the IIC can bediscovered during deposition.
Hey, be careful out there. Many lives are at stake – maybe even your own.