Aviation Law Monitor : Aviation Lawyer & Attorney : Michael Danko Law Firm : California Airplane & Helicopter Crashes : Aviation Law Monitor

Most general aviation aircraft manufactured today come with "glass cockpits."  Instead of being equipped with mechanical gauges and indicators, they are equipped with computer screens.  The screens integrate and display all sorts of useful flight information.  The information displayed may include satellite weather, synthetic vision, infrared vision, terrain awareness information, traffic information, and moving maps. Glass cockpits are supposed to help improve the pilot's "situational awareness." 

Not surprisingly, glass cockpits have been marketed as a safety advantage.  From the website of one manufacturer, Cirrus Aircraft:

We included new safety features to reduce your work load and anxiety by giving you more time to think and improving flight environment manageability. Ultimately, with [our glass cockpit] you get a smoother, more precise flying experience while all the time knowing you are flying smarter, flying safer.

The NTSB agrees that glass cockpits have the potential to improve safety.  But to the surprise of many, the NTSB has now found that, to date, they have not.  To the contrary, aircraft equipped with glass cockpits have a higher than fatal accident rate than comparable aircraft equipped with the old-fashioned, hard-to-decipher mechanical gauges.

Study analyses of aircraft accident and activity data showed a decrease in total accident rates but an increase in fatal accident rates for the selected group of glass cockpit aircraft when compared to similar conventionally equipped aircraft during the study period. Overall, study analyses did not show a significant improvement in safety for the glass cockpit study group.

How can this be?  More information, presented to the pilot in an easy-to-understand fashion, is supposed to be a good thing.  The NTSB's findings have left many scratching their heads.

I've written before that the poor safety record may simply be the result of "Risk Homeostasis" at work.  Risk Homeostasis theory suggests that, when given the opportunity, pilots will use a safety feature to enhance the aircraft's utility rather than enjoy the increased level of safety the feature could provide.  In other words, pilots use the the glass cockpits to fly into conditions that they would otherwise avoid.  And, instead of painstakingly preparing for the flight before they depart, they prepare "on the fly" (so to speak), relying on the glass cockpit to tell them what they need to know.

A feature - whether it is a glass cockpit or an airframe parachute - can serve as a safety feature or one that enhances an aircraft's utility.  It can't do both.

Related Content From the NTSB:

• NTSB Overview Report (pdf)
• Findings & Recommendations (pdf)
• Closing Comments (pdf)

Related Content From this Blog:

• Recent Crashes Stoke Debate on Cirrus Safety
• Cirrus FIKI Marketing Irresponsible?

Related Content from Max Trescott:

• Glass Cockpits: NTSB Concludes Pilots Need More Training

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The FAA has instituted new rules designed to keep sightseeing helicopters from colliding with airplanes that are transitioning the Hudson River Corridor near the Statue of Liberty.  The San Francisco Daily Journal, California's largest legal newspaper, published this column on how the new rules came to pass, and why they aren't enough.

FAA and NTSB Battle Over Aviation Safety

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Burdett v. Teledyne Continental Motors involved the forced landing of a Beech Bonanza after the Teledyne Continental IO-550 engine installed in the aircraft came apart in cruise flight. The passenger was severely injured.

The National Transportation Safety Board blamed the engine failure on the mechanic who last worked on the engine, and cleared the engine manufacturer, Teledyne Continental, from any liability. 

We suspected that the NTSB's determination had been influenced by Teledyne's engineers, who the NTSB had allowed to assist in the investigation, despite the obvious conflict of interest that presented.  We thus conducted our own, independant investigation.  We concluded that, contrary to the NTSB's findings, Teledyne Continental was to blame.  After a six-week trial, the jury agreed.

At its annual convention in San Francisco, the California Trial Lawyers Association, known as the Consumer Attorneys of California, honored aviation accident attorney Mike Danko as a Trial Lawyer of the Year finalist for 2009 in recognition of our work in the Burdett case. The Trial Lawyers Association showed this video presentation during the ceremony.

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This past April, the NTSB called upon the FAA to ground the entire fleet of Zodiac aircraft because their wings tend to fall off in mid-flight.  As it turns out, a defect in the Zodiac's design induces an aerodynamic phenomenon known as flutter.  Flutter can destroy a wing or other control surface in a matter of seconds.  This well-known, dangerous, but rare condition is shown occurring in the tail surfaces of other aircraft types here and here. 

When the NTSB's issued its "urgent recommendation," a total of ten people had already been killed in Zodiacs due to flutter-induced failures.  Back then, the NTSB was under heavy fire for sitting on a long list of NTSB recommendations pertaining to a number of different aviation industry sectors while lives were being lost. Because of that, I figured that this was one recommendation the FAA would act on, and fast.

The FAA will see Zodiac's manufacturer as an easy target and move against it -- if for no other reason than to quiet its critics.

I was wrong.  The FAA refused to ground the aircraft.  Even I was surprised.

Of course, it was just a matter of time.  On November 6, another Zodiac crashed in Arkansas.   It looks like another flutter-induced failure.  That brings the death toll to 11.  On November 13, the NTSB issued an official "I told you so."

The Safety Board's urgent recommendation to the FAA was to "prohibit further flight of the Zodiac CH-601XL, both special light sport aircraft and experimental, until such time that the FAA determines that the CH-601XL has adequate protection from flutter." The FAA replied in July that they lacked "adequate justification to take immediate certificate action to ground the entire fleet." 

The NTSB's unstated question:  Just how many deaths are required before the FAA finds "adequate justification" to act?

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The families of the victims of the Zodiac crash near Oakdale, California, have filed suit against the aircraft's maker, Zenith Aircraft, alleging that the Zodiac's design is defective. The Zodiac is the two-seat aircraft whose wings tend to break off in flight due to a design-induced aerodynamic phenomenon known as flutter.  That appears to be exactly what happened in the Oakdale crash. The design has caused at least 10 deaths so far. 

According to the Modesto Bee, Zenith Aircraft is blaming the pilot and passenger for getting into the airplane it designed.

 Zenith Aircraft said the crash was caused by the "negligence" of [the pilot and his passenger]. The company said both had "full appreciation" of the risks involved.

As discussed here, months ago the NTSB called upon the FAA to ground all Zodiacs. The FAA, however, has yet to do so.  Unfortunately, the NTSB has no power to ground an aircraft on its own.  It doesn't matter how bad the design of the aircraft is; only the FAA can ground a fleet. 

The FAA refuses to act, and Zenith Aircraft won't accept responsibility for the fatal flaws in its aircraft's design.  Lawsuits brought by aviation accident lawyers like the families' lawyers in this case seem to be the only way to prevent others from being killed in the Zodiac. 

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1. The National Transportation Safety Board Secures the Wreckage on Site. The wreckage usually remains at the site of the aircraft accident until the National Transportation Safety Board arrives. The Board investigator immediately secures the wreckage and makes sure no one tampers with it.  The Board investigator inspects, documents, and photographs the wreck.

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NTSB Chairman Deborah Hersman's recent testimony before congress concerning the mid-air collision over the Hudson raises more questions than it answers.  She stated that  the Teterboro controller instructed the Piper pilot to switch to frequency 127.85 to contact the Newark controller.  But before leaving the Teterboro frequency, according to Hersman, the pilot read back to the controller "127.87,"  which was wrong.  Thereafter, the pilot was in contact with neither Teterboro nor Newark, and so neither facility could warn him of the impending collision. Hersman's remarks are here.

Hersman's implication is that the Teterboro controller failed to correct the pilot, and so the controller contributed to the pilot's getting "lost in the hertz" (out of radio contact) at a crucial moment.  However, the animation that the NTSB released on the same day that Hersman testified does not appear to back Hersman up.  It just doesn't sound as though the pilot read back "127.87" as Hersman states.  You can listen to the audio yourself beginning at minute 2:25. 

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There's little question that EMS helicopters are the most dangerous aircraft in the sky. EMS helicopters have a fatal accident rate 6000 times that of commercial airliners. Flying EMS helicopters is one of the most dangerous jobs in America.  In fact, according to the Washington Post, only working on a fishing boat is riskier.  And the EMS helicopter safety record is getting worse, not better.

Why, exactly, is the EMS helicopter accident record so bad?  As discussed here, one problem is that it's not clear who is ultimately responsible for overseeing the industry. State agencies, county agencies and the federal government all have a hand in oversight but no one appears to be in charge. That means that definitive industry standards cannot be established and hazards cannot be effectively managed.

This week, the NTSB recommended that the FAA take steps to address the most serious of the industry's problems. Some of the those recommendations are not particularly surprising. For example, the NTSB suggests that pilots be better trained in bad weather flying, and that helicopters be equipped with night vision equipment and autopilots.

One of the NTSB's recommendations, however, no one saw coming.  The NTSB suggests that Medicare -- which funds most of the EMS helicopter industry by paying up to $20,000 for each patient transport -- adjust its rate reimbursement structure according to the level of safety the helicopter company provides.  In plain english, the NTSB suggests that Medicare not pay air ambulance companies unless they meet certain safety standards.  NTSB board member Robert Zumwalt concedes this recommendation "pushes the envelope".  But the air ambulance record is so bad, extreme steps are necessary.

By targeting the air ambulance industry's source of funding, the NTSB is looking beyond the FAA for help in making the air ambulance industry safer.  Why not just leave it to the FAA?  For one thing, the FAA has yet to act on the EMS helicopter recommendations the NTSB made 3 years ago.  The NTSB is hoping the Department of Health and Human Services (Medicare) will be more responsive to its safety concerns than the FAA has been. 

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We count on the NTSB to get the facts right. That confidence is, unfortunately, sometimes misplaced. The truth is that the NTSB gets it wrong. A lot. I’ve written about that here, here, and here.

The NTSB has now given us further reason to question whether it deserves the confidence we place in it. On Friday, the NTSB came out with a block-buster press release condemning the Teterboro air traffic controller who had cleared the Piper airplane for takeoff. According to the NTSB's report, the Teterboro controller could see on his radar screen that the Piper pilot was on a possible collision course with the Liberty Tours helicopter. In fact, according to the NTSB, the controller could see the conflict before the Piper pilot switched off from the Teterboro controller’s frequency. Yet, according to the NTSB, the controller failed to warn the Piper pilot.

At 1152:20 the Teterboro controller instructed the pilot to contact Newark on a frequency of 127.85. . . At that time there were several aircraft detected by radar in the area immediately ahead of the airplane, including the accident helicopter, all of which were potential traffic conflicts for the airplane. The Teterboro tower controller, who was engaged in a phone call at the time, did not advise the pilot of the potential traffic conflicts.

That was wrong. True, the controller was on the phone when he should not have been.  But the helicopter did not appear on the controller’s radar screen until after the Piper pilot was supposed to have switched to a new frequency. Of course, by then it was too late for the controller to advise the pilot of anything. In other words, it appears that there was nothing the controller could have done -- whether he was on the phone or not.

Over the weekend, the air traffic controllers’ union privately asked the NTSB to correct its error. The NTSB refused. So today the union issued its own press release setting the record straight.  The press release claims that the NTSB's account, which implies that the controller should have prevented the accident, is "outright false" and "misleading."  Worse, it charges that the NTSB knows it, but refuses to correct its error.

This afternoon, after the controllers' union went to the press, the NTSB finally conceded that it was, in fact, wrong. It thus issued a new press release, explaining that the controller could not have seen the helicopter after all.

The accident helicopter was not visible on the Teterboro controller's radar scope at 1152:20 [when the controller instructed the Piper to change frequencies]; it did appear on radar 7 seconds later - at approximately 400 feet.

The NTSB offered no apology for its error. Nor did it offer an explanation. Rather, despite that the union was right, and the NTSB was wrong, the NTSB’s only reaction was to kick the union off the investigation.

The NTSB’s blunder was a whopper. It laid blame for the accident where it does not appear to belong.  The NTSB's only interest is supposed to be in getting the facts right. If that’s so, why did it not correct its error when the union asked it to?  Why did it require the union to force the issue? 

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Mackinac Island, Michigan, located in Lake Huron, is 8.2 miles around. The only way onto the island is by boat or, better yet, general aviation aircraft. No motorized vehicles are allowed on the island.  Everyone gets around by horse-drawn carriage or bicycle.  It was a great venue for the Lawyer-Pilots Bar Association’s 50th Anniversary Meeting on July 8-12.

Some conference highlights--

National Transportation Safety Board.

The National Transportation Safety Board has hundreds of employees. The Board, itself, however, consists of only 5 members. One of the members is Robert Zumwalt.   Zumwalt, who serves as the Board's vice chair, spoke to the group and gave us some useful insight into the Board’s inner workings.

Vice chairman Zumwalt also shared lessons he has learned from his work. One is that many accidents seem to follow from a “Normalization of Deviance.” Overly "relaxed" crew members begin to accept small deviations from Standard Operating Procedures as no big deal.  The deviations become the new norm.  That leads to trouble. In fact, Zumwalt says that crews who intentionally deviate from Standard Operating Procedures are about 3 times as likely to commit additional "errors of consequence."  

Jury Verdicts.

According to Insurance industry representatives: The unpredictability in jury verdicts confuses and discourages aviation business owners. Victims should not be allowed to sue unless the defendant violated a federal aviation regulation. If there is no violation, the lawsuit should be “pre-empted.” (I've discussed pre-emption previously here.) Business owners would then know exactly how to avoid liability: simply comply with the FAA regulations.

According to Plaintiffs lawyers: 95% of aviation lawsuits settle out of court because both sides agree what the likely jury verdict will be. It is only when the two sides, represented by experienced aviation lawyers, disagree on what the jury verdict will be that cases end up being tried.  By definition, then, the only cases that reach the jury are the “unpredictable” ones. Pre-emption is a bad idea because the regulations are minimum safety standards only. The regulations set the bar too low. Those involved in aviation should be held to a higher standard than the bare letter of the law. The flying public expects more when it comes to their safety.

Criminalization of Aviation Negligence. 

A growing trend to “criminalize” aviation negligence only hurts aviation safety. If, for example, an aviation mechanic has to worry about criminal prosecution, he will not speak with the NTSB after an accident. When the FBI gets involved, investigations tend only to grind to a halt. The best chance of finding out an accident's cause is through the civil process, not the criminal process. Both the insurance industry and the plaintiffs lawyers seem to agree on this one: criminalizing aviation negligence hinders, rather than promotes, aviation safety. (I’ve written before about criminalization of negligence here.)

Biggest Change in Aviation Law in Past 50 Years?

Possibly the General Aviation Revitalization Act, or GARA.  GARA, discussed here, bars suits against aviation manufacturers for defective products that are more than 18 years old. It has cut down on litigation tremendously, but has left many of those injured by a defective aviation product without any means of obtaining compensation from those responsible.

The trip here from the San Francisco Bay Area took about 10 hours in the Cirrus. The trip home should be a bit longer. Thanks to LPBA President Susan Hofer for overseeing a great conference.

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Clients often ask: "Shouldn't we wait for the National Transportation Safety Board to finish its report before deciding whether to bring a lawsuit?" Sometimes, that makes sense. But most of the time, waiting is not in the client's best interests. Here are four reasons not to wait:

1. The NTSB's Findings are Seldom Unbiased. The NTSB doesn't have the engineering expertise or financial resources to investigate an accident on its own. So it asks for technical help from the aircraft manufacturers. For example, if a case involves an engine failure, the NTSB will ask the engine manufacturer for help in determining why the engine failed. Not surprisingly, the manufacturer seldom points out to the NTSB evidence suggesting that its own product may have caused the accident. The conflict of interest inherent in the NTSB's investigations mean that the NTSB's final reports almost always favor the big industry players.

2. The NTSB Seldom Tackles the "Why" Questions.  More and more, the NTSB's report describes what happened, without really saying why it happened. But the "why" questions are the ones that matter most.

As an example, in one case, an EMS helicopter crashed and all aboard were killed. A year and a half later, the NTSB published its probable cause report concluding that one of the helicopter's rotor blades came apart in flight. That, however, was obvious from the outset.  Only during the lawsuit that followed the crash was it discovered that the blade came apart because, months before the accident, a mechanic had botched a repair to the blade, weakening its internal structure. The NTSB never interviewed the mechanic involved.  It was satisfied that it had determined the "cause" of the accident when it figured out that the rotor blade failed. As far as the NTSB was concerned, once it determined that the blade failed, the case was closed.  The NTSB told us what happened, but not why. 

3. The NTSB's Accident Report Isn't "Binding" on Anyone. The NTSB's conclusions have no legal effect, and they are inadmissible it court.  So we can't just rely on the NTSB to do our work for us; we have to conduct our own investigation. Waiting for the report just puts us behind.

4. We Could be Waiting Forever. It usually takes the NTSB one to four years, sometimes even longer, to come out with a report.  The NTSB is so slow that if we begin a lawsuit right away, it often can be settled and sometimes even tried to verdict before the NTSB report is completed. On the other hand, if we wait for the NTSB's report before starting our own investigation, witnesses' memories will have faded and important documents may be lost or destroyed.  The wreckage may end up being scrapped before our experts examine it.  Worst of all, statutes of limitation may run on the claim, preventing us from filing any lawsuit at all regardless of what the cause of the accident turns out to be. 

The NTSB investigators are good people dedicated to aviation safety. They perform a very difficult job under harsh conditions. They are, however, underfunded, understaffed, and overwhelmed. They just don't have the necessary resources or expertise, especially when it comes to investigating general aviation accidents. Sad to say -- NTSB reports are seldom worth waiting for.

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Two months ago, Scene Systems -- a litigation support firm -- released its animation of Flight 1549's crash into the Hudson. I posted here that, in all likelihood, the animation would not be admissible in court. The legal objection would be that the animation "lacked foundation." For example, without information from the Airbus' black boxes, Scene Systems couldn't confirm the aircraft's flight path or guarantee that the Air Traffic Control audio was properly synchronized to the aircraft's path of travel.  Therefore, the animation involved too much guesswork to be shown to a jury.

The National Transportation Safety Board has now released its own animation. Having retrieved the black bloxes, the NTSB was able to plot accurately the Airbus' position, speed, and altitude at each point along the aircraft's short flight.  The NTSB then properly synchronized the Air Traffic Control audio to the aircraft's flight path.

The only audio on the NTSB's animation is the radio transmissions between the crew and Air Traffic Control. As is typical, the NTSB did not make public the audio of the cockpit conversation between the captain and the first officer. The NTSB did, however, prepare a written transcript of that conversation. The NTSB superimposed the transcript on the animation. (HOT-1 is the pilot, HOT-2 is the first officer.)

Would this animation be admissible in court?  While Scene System's animation would not pass legal muster, the NTSB's work probably would. 

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Cory Lidle's wife and Tyler Stanger's family are suing Cirrus Design, alleging that a problem with the plane's flight controls caused Lidle and Stanger's plane to crash into a Manhattan hi-rise.

Miles O'Brien, a former CNN correspondent, calls the lawsuit frivolous, because the NTSB concluded the cause was pilot error.  According to O'Brien, "in our litigious society, the facts don't matter for much."

O'Brien is missing the fact that the NTSB's conclusion is marred by a built-in conflict of interest. That’s because the NTSB allowed Cirrus to participate in the investigation, but not the families or the families’ experts. Is it any surprise that the NTSB’s final conclusions favored the manufacturer?

There is a known problem with the Cirrus ailerons jamming at full deflection. After this accident, Cirrus published a number of service bulletins in an attempt to correct the problem and, ultimately, the FAA issued an Airworthiness Directive against the aircraft. That doesn't necessarily mean that the aileron problem caused the Lidle crash. But the families are entitled to use the power of subpoena that comes with filing a lawsuit to investigate what happened. They don’t have to simply accept the NTSB’s conclusion — a conclusion the NTSB reached after closed-door meetings with Cirrus’ experts. 

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The National Transportation Safety Board doesn't have the engineering expertise or financial resources to investigate an accident on its own. So it asks industry representatives for help.  In almost every case, it turns to the manufacturer of the aircraft component that failed or malfunctioned.  In other words, the NSTB asks the entity most likely to have caused the crash for help investigating it. The NTSB calls this method of investigation the "party system."

Can we really expect a manufacturer to point out to the NTSB evidence suggesting that it may have been at fault?  Of course not.  Asking industry representatives to help determine the cause of an accident is like asking the fox to help figure out what happened to the chickens.

Victims' families are not allowed to participate in the NTSB's accident investigations. Nor are experts hired by the families or by the families' attorneys. So the investigation is necessarily one-sided, with the NTSB's final report heavily "influenced" by the very corporations whose products or services are being investigated. The NTSB has recognized the conflict of interest inherent in its "party system" but, unfortunately for victims and their families, continues the practice in just about all of its investigations. 

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The Hawaiian Helicopter Tour Industry is Big Business.   Each year, more than 1 million people take an aerial tour of Hawaii.  That equates to one out of every 10 visitors to the islands.  Most of the tours are in helicopters.  The business generates more than $200 million annually, and supports countless jobs.

A helicopter is a great way to take in the islands' natural beauty.  And that is what the tour companies sell.  "Fly into the heart and heat of an active volcano" advertised one operator.  "Fly close enough to feel the waterfall's cooling mist" offered another.

But the Helicopter Safety Record is Terrible.  Flying too close to the terrain features, tangling with the islands' unpredictable "micro-weather," and substandard maintenance practices have resulted in a long list of fatal accidents. As a result, year after year, Hawaii's aviation safety record stacks up as one of the worst of any state in the country.  Some statistics: 20 Hawaiian air tour crashes occurred in one three-year period alone.  Within one two-week period, two separate tour crashes claimed five lives.  Kauai seems to be the most lethal of the islands, with 18 fatalities occurring over one four-year period.  The bottom line: 40 people have died in Hawaiian sightseeing flights since 1995.

Are the Statistics Improving?  So reports the Honolulu Advertiser.  But that's a stretch.  Just look at the chart accompanying the article, which appears below.   Only the most optimistic industry booster could find a positive trend worth noting. (Note: the chart shows fatal accidents only, not the total fatalities resulting from those accidents.)

But at Least the Industry Has Gotten A Wake-Up Call, Right?     Well, that's what it claims.  There were two helicopter crashes in 2007, and the industry says those two crashes changed everything.  Did they? 

Hardly.  

Take a look: The first crash in 2007 involved Heli-USA, one of Hawaii's largest helicopter tour operators.  That crash killed 4 tourists and injured 3.  The National Transportation Safety Board's report, published this past January, found that the crash was caused by Heli-USA's sloppy maintenance practices. It seems that Heli-USA mechanics were not tightening nuts properly on the company's helicopters.  That's because they weren't following the manufacturer's manuals as required by the FAA regulations. Maybe it's hard to blame the mechanics, because the only manuals Heli-USA had on hand were three revisions out of date.  In fact, the NTSB determined that the crash wasn't caused by a mechanic simply having a bad day, but by a shoddy maintenance program that falls well short of meeting basic FAA regulations. 

And that 2007 crash was Heli-USA's second fatal Hawaii crash in 2 years. So did Heli-USA finally get the "wake-up call," like the industry says?  Not at all.  Heli-USA's president, Nigel Turner, has made clear that he rejects the NSTB findings.  It doesn't appear that he intends to change a thing about how his company maintains his helicopters.  The fact of the matter is that he hasn't learned any lesson at all, and the NTSB is powerless to bring him or his company into line. 

It's Still Profits Over Safety.   It gets worse.  Turner's company operates only A-Star helicopters. A pilot himself, Turner says A-Stars have a problem.  He says that the design of the helicopter's hydraulic system causes the helicopters to crash.  Turner says he has known about the problem for years, but the manufacturer refuses to fix it.  Does that mean Turner is going to switch to a helicopter he considers safer?  Nope.  Turner makes no bones about it: the profit motive trumps safety.  According to the Star-Bulletin:

Turner said that despite the problems with the A-Star, it will remain the helicopter of choice for his company because it's the only chopper with forward-facing seats that can fit enough passengers to make a tour profitable.

Tourists Beware.  Turner's concerns about the safety of his helicopters appear nowhere on Heli-USA's website.  Instead, there's a page touting Heli-USA's "excellent safety record."  (How can a company that has, in the past four years, killed 7 and injured 6 others consider its safety record to be "excellent"?)

Visitors to Hawaii deserve to know what the industry leaders know.  Perhaps Heli-USA could at least put up a sign at its counters:  "The owner feels the helicopter you are about to climb into has a dangerous design defect."  Or maybe:  "We don't require our mechanics to follow the manuals."  

Oh, wait a minute, that might not be good for profits. 

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Today the NTSB issued an "urgent" safety recommendation, asking the FAA to immediately ground all Zodiac CH-601XL aircraft.  The reason:  their wings tend to fall off.  So far, six have broken up in flight, causing 10 fatalities.  The NTSB suspects that the design of the aircraft induces "flutter"-- an aerodynamic phenomenon that can destroy an aircraft in seconds.  This short NASA video depicts flutter nearly destroying the tail on a Piper Twin Comanche.

Will the FAA act on this recommendation or, like it has with regard to so many other NTSB recommendations, simply ignore it?  I'm betting that this is one the FAA will act on.  As I've noted before, the FAA has been under increasing fire for sitting on NTSB recommendations while lives are lost. The FAA will see Zodiac's manufacturer as an easy target and move against it -- if for no other reason than to quiet its critics.

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A reader of this post concerning air ambulance accidents asked, “Can the FAA really get away with ignoring the NTSB?"  The answer, to date, is "yes."  And there's nothing the NTSB can do about it.

The whole reason the NTSB exists is to learn from accidents and make safety recommendations so that similar accidents won’t happen again. But the NTSB has no power to make anyone, including the FAA, follow its recommendations.  And so, frequently, the FAA just ignores them.

Of course, ignoring NTSB recommendations can lead to loss of life. Some feel that the crash of Continental Flight 3407 in Buffalo might have been avoided, and 50 lives saved, had the FAA acted on the NTSB’s safety recommendations concerning turboprop planes and airframe ice. But the FAA never did, despite that some of those recommendations are now more than 10 years old. Even by goverment standards, ten years is a long time to sit on something. 

But back to air ambulances: The NTSB studied 55 air ambulance crashes occurring between 2002 and 2004 in which 54 people were killed.  As a result of what it learned, the NTSB recommended (pdf) that air ambulance companies be required to, among other things: 

• equip their helicopters with terrain warning systems;
• ensure that their pilots have good weather information before taking off; and
• ensure that their pilots get adequate rest. 

All straightforward stuff that is hard to argue with. 

That was back in 2006.  Since then, another 9 air ambulances have crashed, killing 35.  Still, the FAA hasn't acted on the recommendations. Though there has been some response from the FAA, the NTSB calls the response "unacceptable." 

One might wonder: if the FAA is free to ignore the NTSB, and has a record of doing just that, then what’s the point of even having an NTSB?

Good question.
 

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Well, that seems to be what the National Transportation Safety Board said today when it commented on the preliminary accident statistics for 2008.

The NTSB's comment:

The 2008 accident statistics reveal a mixed picture. . . We are particularly concerned with the spike in fatalities in on-demand air charter operations. There's a lot of room for improvement in this area, and as evidenced by our recent forum on emergency medical service helicopter accidents, we continue to do everything we can to identify the safety issues involved, and to advocate for the adoption of our recommendations that will make the skies safer.

Our Translation:  "The 2008 accident statistics wouldn't look bad except for all the air ambulance helicopter crashes.  We've got some ideas on how to make air ambulance operations safer, but the FAA keeps ignoring us.  As usual." 

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Some people think that the National Transportation Safety Board is the final authority over an aviation accident -- that the NTSB acts as the accident "police."  They think that, in the end, the NTSB will catch the one responsible for the accident and make that person answer for what happened.  But that's just not the case.

It's true that, like a cop, the NTSB can secure an accident scene and keep others away.    It can examine the aircraft wreckage. It can have aircraft parts tested to help determine why the accident happened. It can even subpoena evidence. But the NTSB investigates a crash for one reason only: to gather and then publish information so that similar accidents may be avoided in the future.

Although it is an agency of the federal government, the NTSB has no enforcement powers. That means that the NTSB can't bring criminal charges. It can't fine anyone. The NTSB can't suspend anyone's license as a result of what it learns, and it can't put anyone out of business. If the NTSB concludes that someone, such as a maintenance facility, was responsible for the crash, that facility is free to ignore the findings and carry on business as usual. 

When the NTSB is done with its investigation, it prepares a report. The report usually includes the NTSB's opinion as to the accident's "probable cause."  The hope is that the aviation community will read the report and learn something from it.  Because that is the report's only permissible purpose, by federal law, the opinions in the report are inadmissible in any lawsuit arising from the crash. 

Sometimes the NTSB, as a result of what it learns, will publish a safety recommendation.  Often the recommendation is that the FAA pass tougher regulations.  But the FAA need not follow the NTSB's recommendations, and frequently chooses not to.   

If there is a lawsuit concerning the crash, the NTSB will not get involved.  Not only is the NTSB's report of the accident's probable cause inadmissible, but the NTSB investigators are prohibited by law from testifying in court, even if they are served with a subpoena.

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Actually, the black box is day-glo orange.  And there are two of them.

The first is the Cockpit Voice Recorder. It records not just what is said in the cockpit, but also all the background mechanical sounds that provide clues to determining the chain of events leading to the accident.  The NTSB, along with other parties to the investigation, listens to the CVR, and then prepares a transcript of what it hears.  The transcript, or parts of the transcript, may be released to the public.  The actual recording, however, is almost never made public, mainly out of concerns over the crew's right to privacy.

After an accident, we will often hear on the news the crew's conversation with Air Traffic Control.  Sometimes the news media report that the recordings are the "cockpit tapes."  They're not.  What we are hearing is the recording made by Air Traffic Control.  So we are hearing only what the crew decided to transmit over the aircraft's radio.  We're not hearing what  the crew said amongst themselves.  Those discussions are on the CVR only.

The second "black box" is the Flight Data Recorder.  That box records things like the aircraft's heading, altitude, airspeed, and position of the aircraft's flight controls.  The information from the Flight Data Recorder frequently allows the NTSB to reconstruct the flight all the way up to the moment of impact.

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