A courageous client speaks to Stephen Stock about the risks to the flying public.
A courageous client speaks to Stephen Stock about the risks to the flying public.
The NTSB allows aviation manufacturers to participate in its crash investigations. But it excludes from the investigation the crash victims, the victims’ lawyers, and their experts. That’s how the NTSB has gone about investigating aviation accidents for years. It’s little wonder, then, that the NTSB’s final reports are frequently biased in favor of the manufacturers and against the pilots or the passengers. The conflict of interest inherent in the NTSB’s investigations is one reason why the NTSB most often concludes that a crash is due to pilot error rather than, for example, a mechanical defect.
Lawyers for crash victims have long complained that the manufacturers and their lawyers are too cozy with the NTSB. When the manufactures aren’t trying to influence the NTSB’s conclusions in their favor, they are using their status as a “party” to the NTSB investigation to gather information they can later use to defend themselves in lawsuits the victims might bring.
Lawyers for manufacturers used to deny that they were too chummy with the NTSB. Now, not only do they concede that its true, but they have started touting their relationship with the NTSB as a way of attracting more manufacturers as clients.
Wilson Elser is one of the country’s largest aviation lawyer firms representing manufacturers and other industry interests. Today the firm announced that it is launching a “national helicopter defense practice.” Why should a helicopter manufacturer hire Wilson Elser after a crash? Well, because Wilson Elser is in tight with the NTSB:
Our team consists of accomplished litigators and trial attorneys, which are key to any defense team, as well as collective experience in aviation and aerospace with a distinct focus on rotorcraft. Together with our strong relationships with the National Transportation Safety Board and Federal Aviation Administration, we are able to gather the information necessary to create strong defense theories.”
It hardly seems fair that defense law firms are allowed to use their cozy relationship with the NTSB and their status as a “party participant” in the NTSB investigations to gain an advantage in litigation against the crash victims. Yet, that is the way it is.
Robinson Helicopters began installing crash-resistant fuel tanks in 2010. Robinson Helicopters with fuel tanks installed before then tend to catch fire during accidents that, but for the fire, would have been survivable.
The Australian authorities thought that the safer tanks were a good idea. Enough Robinsons had caught fire after minor accidents that in 2013 the Australian government grounded all Robinson R44 helicopters operating in Australia until their owners installed the new-style fuel systems.
The NTSB asked the FAA to follow suit and issue a similar order grounding R44 helicopters in this country. But the FAA refused. Even assuming the old-style Robinson fuel tanks were needlessly dangerous, the FAA thought they really weren't all that different from the fuel tanks installed in many other older helicopters. If the FAA grounded Robinsons until they were fixed, they'd have to ground a lot of helicopters produced by other manufacturers as well.
But the FAA has known about the trouble with old-style fuel systems for a very long time. In fact, since 1991, FAA regulations have required manufacturers to install in their helicopters fuel systems that are proven "crash resistant." Trouble is, those regulations apply only to helicopters designed after 1994. They do not apply to helicopters that are manufactured today, but were designed (or certified) before 1994.
Unfortunately, the majority of light helicopters manufactured in the US today were designed before 1994, and so in practice the regulations seldom apply. The NTSB thinks its time for that to change. The NTSB's latest safety recommendation asks the FAA to:
Require, for all newly manufactured rotorcraft regardless of the design’s original certification date, that the fuel systems meet the crashworthiness requirements of 14 Code of Federal Regulations 27.952 or 29.952, “Fuel System Crash Resistance.”
What will the FAA do in response to the NTSB's recommendation? If history is a guide, unfortunately, the FAA will do nothing.
Families of those involved in five different general aviation crashes and their lawyer are suing the NTSB, charging it with obstruction of justice. The suit claims that the NTSB withheld from the families information concerning each of the crashes in violation of the Freedom of Information Act.
I’ve commented before about how the NTSB’s “party system” creates a conflict of interest that skews the results of its investigations in favor of the manufacturers. But this lawsuit goes further than that. It alleges not just a conflict of interest, but collusion between the NTSB and the manufactures:
Upon information and belief, investigators and others employed by the NTSB collude with manufacturers and, upon their departure from government, most often accept employment defending the aircraft and component manufacturers whom they are previously tasked to investigate.
As a result of that collusion, the lawsuit alleges, the NTSB withholds and even destroys evidence for the express purpose of preventing the victims and their families from finding out what really caused the crash and holding those responsible accountable.
The NTSB, through its officers, employees and/or its agents, including party participants, acted and continues to act with the intent to avoid, evade, prevent and/or obstruct the timely investigation of airplane crashes.
Does the NTSB really destroy evidence? Every aviation lawyer knows that it does exactly that, at least to some extent. For example, an NTSB investigator may take many photos of an accident scene or wreckage. Yet, he will make part only certain of those photographs part of the “Public Docket.” The investigator may simply discard the rest before the NTSB releases its final report and opens the docket to public review. The lawsuit seems to suggest that at least some investigators discard material purposely and selectively so that evidence that would incriminate the manufactures or other “party participants” never sees the light of day.
A few hours ago, USA Today published a lengthy investigative report devoted to small aircraft crashes. The conclusion: aviation manufacturers have long concealed the fact that their defectively designed products cause aircraft crashes and injures. And the investigating agencies, including the NTSB and FAA, let them get away with it.
The report covers many of the issues we’ve touched upon before on this blog, from defective carburetors, to defective pilot seats, to faulty ice-protection systems. The report also covered a subject we’ve covered on this blog extensively – post crash helicopter fires in otherwise survivable accidents:
One of the most gruesome and long-standing problems has caused scores of people to be burned alive or asphyxiated in fires that erupt after helicopter crashes. Such deaths are notorious because they can occur after minor crashes, hard landings and rollovers that themselves don't kill or even injure helicopter occupants. The impact can rupture helicopter fuel tanks, sending fuel gushing out, where it ignites into a lethal inferno.
Using autopsy reports and crash records, USA TODAY identified 79 people killed and 28 injured since 1992 by helicopter fires following low-impact crashes. In 36 non-fatal crashes, fire destroyed or substantially damaged helicopters after minor incidents such as rollovers, crash reports show.
The report didn’t mention the most recent Robinson fire that killed the R44's pilot at Birchwood Airport in Alaska just two weeks ago.
I've been saying for years that many crashes that the NTSB attributes to "pilot error" simply aren't. The USA Today report backs that up. The report discussed the fatal crash of a single engine Piper following engine failure. The NTSB chalked up the engine failure to pilot error. But, as it turns out, the crash was caused by a defective carburetor float. The judge handling the case noted that the carburetor manufacturer had received more than 100 warranty claims for similar problems before the crash. Yet none of that product history made it into the NSTB report.
Ruling against Lycoming [the engine manufacturer] and Precision [the carburetor manufacturer], Philadelphia Judge Matthew Carrafiello found evidence both might be culpable. Precision received more than 100 warranty claims concerning carburetor defects, the judge said, and Lycoming continued to use the carburetors even though it "knew of ongoing problems" with the carburetors "and of numerous plane crashes resulting from such problems.
None of that information was included in the NTSB investigation, which was aided by Lycoming and Precision and blamed Andy Bryan, the pilot, for "failure to abort the takeoff" and "failure to maintain adequate airspeed during takeoff."
According to the report, many of the crashes that the NTSB concludes are due to pilot error are actually due to defectively designed aircraft.
Federal accident investigators repeatedly overlooked defects and other dangers of private aviation as they blamed individual pilots for the overwhelming number of crashes of small airplanes and helicopters . . . The failure of crash investigators to find defective parts, dangerous aircraft designs, inadequate safety features and weak government oversight helped allow hidden hazards to persist for decades, killing or injuring thousands of pilots and passengers . . .
Manufacturers mislead the FAA
Part of the problem is that the NTSB does not travel to the site of many small airplane crashes, leaving the on-scene investigation to the FAA. Unfortunately, according to a former NTSB investigator, the FAA personnel don’t have the same investigative experience as the NTSB investigators and are easily duped by the manufacturers.
Many times what happens now is that when the accident occurs, the technical rep of the (manufacturing) company will call the NTSB and say we'll be party (to the investigation), we'll go out there and let you know what we see … the only people on scene would be perhaps an FAA guy and the field rep of the manufacturer," said Douglas Herlihy, a former NTSB investigator who now reconstructs crashes, often for plaintiffs in lawsuits against manufacturers.
"If you (the NTSB) are not there, you've got the representative from the company at the scene. His job is to skew the facts, to ignore the product difficulties and to remove the question of liability," Herlihy said.
No conclusion yet as to exactly what caused the Galloping Ghost to crash last September at the Reno Air Races. But the interim report the NTSB issued today disclosed that the Galloping Ghost experienced an “upset” 6 seconds before it lost its left elevator trim tab. That, in turn, caused the aircraft to go out of control. None of that information is really new, and was discussed shortly after the accident in this post and in the post's many thoughtful comments.
The NTSB also issued safety recommendations that specifically questioned whether the Galloping Ghost had been properly tested at race speeds or otherwise evaluated for resistance to “flutter;” an aerodynamic phenomenon that can destroy an aircraft in seconds. But that’s not news either -- flutter and its possible role in this crash was discussed the day after the crash here.
There is one fact, however, that we didn’t know before. Race officials inspected the aircraft just before the race and determined that the aircraft’s trim tab’s screws were too short. But the NTSB could find no documentation that the screws had been replaced and the discrepancy resolved before the race started. Though the race inspector stated that he verified that all the aircraft’s discrepancies had been resolved, the NTSB recommended that, in the future, race organizers develop a system that tracks discrepancies found during pre-race technical inspections and ensures that they have been resolved before an aircraft is allowed to race As the NSTB put it:
without a method to track discrepancies to resolution, conducting pre-race inspections is of limited value.
The NTSB’s interim report doesn’t say whether the screws were, in fact, replaced. For that, we’ll have to wait for the NTSB to issue its factual report. But even without a system for race officials to track discrepancies, whenever a mechanic performs any work on an aircraft, he is supposed to record that work in the aircraft’s maintenance logs. If there’s no entry in the Galloping Ghost’s logbooks showing that the screws were changed, that’s evidence that the work wasn’t done, or at least wasn’t done properly.
Besides recommending that race officials establish a better system of ensuring that aircraft discrepancies are repaired before race time, it issued recommendations that would, among other things:
The NTSB blamed the helicopter crash that killed 9 firefighters on the the helicopter's operator. Basically, the NTSB concluded that the helicopter crashed because it was overloaded. But today a jury disagreed, deciding that the Sikorsky helicopter crashed because one of its two engines failed. The jury handed down a $70 million verdict against GE, the engine's manufacturer.
Why is a jury allowed to come to a conclusion totally opposite to that reached by the NTSB? In short, because the NTSB's findings are inadmissible in a court of law. And there's good reason for that. For starters, a victim's family is not allowed to participate in the NTSB investigation, while the manufacturers who may be to blame for the accident are. As a result, the NTSB's findings frequently favor the manufacturers.
Is that what happened here? Did the NTSB unfairly favor GE? It seems that it may have.
I spoke today with one of the participants in the trial held in Portland. He explained that, originally, the NTSB had determined that one of the helicopter's engines did, in fact, fail in flight. That report mysteriously "disappeared," however, shortly after it was published. As did the engine's fuel control unit.
The NTSB ultimately took the position that losing the fuel control unit was no big deal, because it believed the engine hadn't failed. But plaintiffs introduced at trial substantial evidence that it had, including an audio recording made during the crash sequence which helped proved that one of the engines "rolled back," or shut down, just before the impact.
In December, 2010, the helicopter's operator issued a press release complaining that the NTSB proceedings were unfair. Given today's verdict, it makes for particularly interesting reading.
. . the facts clearly show that the primary cause of this accident was a loss of power to the #2 engine of the aircraft. There is a strong chain of physical evidence in the [NTSB's evidence] that indicates a high probability that a malfunctioning fuel control unit (FCU) caused a sudden loss of power as the aircraft transitioned to forward flight. Extensive independent real-world flight testing has confirmed that even [if overweight, the helicopter should] have had enough power to fly away from . . with two properly operating engines. The co-pilot has confirmed much of this evidence with his recent testimony. . . The NTSB has ignored his testimony in favor of supposition. . .
Unfortunately, early in this investigation the NTSB lost custody of several fuel control parts, and conducted a filter inspection incorrectly, which they have acknowledged. Since that time, the NTSB has chosen to ignore the physical evidence and flight parameters that indicate a possible blockage in the FCU. They repeatedly refused to participate in independent flight testing, and they have not given proper consideration to the copilot's direct testimony of conditions and available power just prior to the crash.
The NTSB says that during tomorrow’s hearing, it will be looking to industry leaders to give it a “deeper understanding of regulations” bearing on the operation of the nation’s air shows. Of course, the only regulatory body that has the authority to control air shows is the FAA. But what the Board will find -- if it asks the right questions -- is that for the most part, the industry regulates itself. According to one veteran air racer, Howie Keefe, the FAA is more or less “hands off” when it comes to air show safety. From Martha Bellisle’s article in the Reno Gazette-Journal:
Keefe said the industry is largely self-regulated because the pilots and engineers are the most qualified to determine whether another pilot can handle a certain race or course or whether a certain design can handle the stress of a trick or race. ‘The classes themselves can say yes or no to a person who wants to race — if they can’t do a roll, they can’t race,’ Keefe said. ‘The FAA can’t do that. We rely on the expertise of the people in the industry to make the decisions.’
Perhaps a “hands off” policy is fine for the participants. But not so much for the spectators, who expect that if the FAA approves an event, it is overseeing the event’s safety in some meaningful fashion, and not merely turning the reins over to the event sponsors.
This Board says that the purpose of tomorrow’s public hearing is to help it investigate future air show accidents. But this Board is more assertive than past boards. There’s little doubt that it will find the FAA’s oversight lacking. The question is whether it will do anything about it.
The NTSB is underfunded and understaffed. So it investigates accidents using the "party system." That means the NTSB relies on those who may have caused the accident for help in investigating the accident's cause. Unfortunately, the "party participants" seldom point the NTSB towards evidence in their files that would tend to incriminate them. As a result, NTSB reports go easy on the industry players.
From time to time, I've offered examples of cases (like the ones here and here) where the real cause of the accident was found by plaintiffs lawyers -- sometimes well after the NTSB report is published.
Here’s yet another example, this time arising out of the crash of the Continental (Colgan) Flight 3407. According to a recent CBS News report, lawyers for the families uncovered emails showing that Colgan Air knew the captain was not qualified to fly the Q400, but put him in the left seat anyway.
According to an ABC report, in one of the emails a Colgan Vice President states that the captain
had a problem upgrading” and, taking that into consideration, “anyone that does not meet the [minimums] and had problems in training before is not ready to tackle the Q.”
The “Q” is a reference to the Bombardier Q400. Despite Colgan's concerns about the captain's ability to fly the Q400, they promoted him anyway. Just five months after that, the new Q pilot crashed his aircraft in Buffalo, killing 50.
This wasn't merely a case of "pilot error," it was the result of an airline that didn't take safety seriously enough. The newly released emails are critical to understanding why the accident happened, and how similar accidents can be avoided in the future. Yet, an NTSB spokesman confirmed that Continental did not provide these emails to the NTSB at any time during its year long investigation of the crash.
It looks like the company's emails tell the story of why Continental Flight 3407 crashed. And it was the plaintiffs' lawyers, not the NTSB, who found them.
The NTSB excludes family members from its accident investigations. But it allows those who may have caused or contributed to a crash to participate. That's an obvious conflict of interest. As a result, NTSB probable cause findings are not always impartial. Instead, they tend to favor the industry players.
The industry players have long argued that, while they may be allowed behind closed doors to assist the NTSB in their investigations, they would never seek to influence the investigation's outcome.
The Reno-Tahoe Airport Authority, which owns Reno-Stead Airport, has dropped the pretense of "just wanting to help the NTSB find out what happened." Rather, it has gone whole-hog in seeking to actually influence the investigation of the Reno Air Race Disaster. In fact, it has hired professional help from a Washington lobbying firm.
You won't find that information on the Airport Authority's website. But you will find it in papers filed in Washington, DC. According to The Hill:
The Reno-Tahoe Airport Authority has hired Gephardt Government Affairs to lobby on the “government investigation of crash at Reno Air Races,” according to new lobbying forms released this week.
An NTSB investigation is not supposed to be a political process. It's hard to imagine anything more inappropriate than hiring lobbyists to influence its outcome.
But that is what it has come to.
Thankfully, we still have the jury system. No lobbying allowed there. Everything has to be done in open court, for all to see.
Cirrus says Cory Lidle crashed because he was inexperienced, not because his controls locked up. But a surprise witness testified that Lidle had flown the East River Corridor successfully four times in the two months before the crash. According to a NY Daily News account, the witness related that Lidle talked with her about his flights with some enthusiasm:
He said it was outstanding, beautiful," she told rapt jurors, adding that he had taken the same 25-minute flight twice at night and twice in the daytime. "He said, 'You really have to come with me the next time I go.'"
The NTSB brief on the accident noted that Lidle's logbook showed no record of having flown the corridor before. It goes on to conclude that the accident was caused by Lidle's inexperience and failure to plan properly. It faulted Lidle for not recognizing that there was limited turning space in the corridor. In other words, the situation caught Lidle unprepared.
The surprise witness' testimony calls that conclusion into question.
Of course, a pilot need not log all his flights.That's why an investigator needs to talk to the witnesses to learn about a pilot's experience, and can't always just rely on what's in the logbooks.
The NTSB investigated this accident much more thoroughly than the typical general aviation accident. And the NTSB did, in fact, interview this witness before publishing its report. Why didn't the NTSB get this information from the witness when its investigators interviewed her? According to the witness, that was simple:
They didn't ask me."
The Lidle jury will never learn that the NTSB concluded the crash was caused by pilot error, and not a defect in the plane, as plaintiffs allege.
The reason is that, by federal statute (49 USC 1441(e)), the NTSB’s conclusions are inadmissible in court.
No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned is such report or reports.”
As it turns out, the statute doesn’t mean exactly what it says. Some parts of an NTSB report are sometimes admissible. But the courts have made clear that the NTSB's probable cause finding must always stay out of evidence.
Many find that surprising. Federal statute aside, shouldn’t the jury be told what the NTSB concluded? Isn’t the NTSB, after all, in the best position to determine the cause of the accident?
No and No.
The Jury should Not be Told of the NTSB’s Conclusions
The NTSB allows the manufacturers who are potentially responsible for a crash, such as Cirrus, to participate in its investigation. But the NTSB excludes the victim’s family. This practice, which the NTSB calls the "party system" of investigation, results in probable cause conclusions which favor the industry players. It's one reason why most accidents are chalked up to "pilot error."
It wouldn’t be fair to stick the families involved in the Lidle case with the NTSB’s conclusion given that the NTSB didn’t give them the opportunity to be heard.
The Jury, not the NTSB, is in the Best Position to Determine the Cause of the Accident
Unlike the NTSB, the jury will hear the testimony of experts from both sides of the case. Both the experts retained by Cirrus and those retained by the familes. That places the jury in a better position than the NTSB to determine the true cause of the crash.
There's not a lot of air traffic at night. So some air traffic control towers close altogether. Any landing aircraft is on its own. Other air traffic control towers are staffed with just one controller. Not surprisingly, lone controllers working the night shift tend to doze off.
That little secret is now out. That led to the resignation of the head of the Air Traffic Organization. And then, just yesterday, the FAA announced that a second controller will be added to the overnight shift at 27 airports.
Sounds like moves in the right direction. But what do you get when you put a second controller into a dark, quiet control tower in the middle of the night?
Two sleeping air traffic controllers.
It's not a matter of just adding staff. It's a matter of dealing with the somewhat complicated issue of how night shifts disrupt a workers' circadian rhythms. At least so says Dr. Mark R. Rosekind, the newest member of the the National Transportation Safety Board.
I had the pleasure of hearing Dr. Rosekind speak a couple of weeks ago at Menlo High School in Atherton, California. Dr. Rosekind is one smart guy. And he happens to be a sleep expert. In fact, Dr. Rosekind was the Director of the Center for Human Sleep Research at Stanford University. So he knows a thing or two about "fatigue management."
Unfortunately, the FAA isn't required to listen to the NTSB, and frequently doesn't. In the past, when it comes to fatigue risk management, an act of congress was required to get the FAA to do something.
Not to worry. This time the FAA, or at least the US Transportation Secretary, Ray LaHood, is on top of it. He is outraged. LaHood says he "will not sleep" until there's good safety in the control towers. (Yes, he really said that.)
I often write about the NTSB's "party system." That's the NTSB's practice of asking airlines and manufacturers for help in determining an accident's cause. If you ask me, it's a bit like asking the fox for help in figuring out what happened to the chickens. The party system allows industry participants to bias NTSB probable cause findings in their favor.
The NTSB allows party participants to handle evidence and perform certain engineering tests. But one thing the NTSB insists on doing all by itself is downloading the data from an aircraft's black boxes. The NTSB's labs in Washington DC are well equipped for that job, and it doesn't require any "help" from the airlines.
The Safety Board learned that the recorders were flown to Tulsa, Okla., where American Airlines technicians downloaded information from the DFDR. . .
Because maintaining and enforcing strict investigative protocols and procedures is vital to the integrity of our investigative processes, we have revoked the party status of American Airlines and excused them from further participation in this incident investigation.
In 1996, a ValuJet MD-80 went down in the Florida Everglades, killing all 110 on board. The cause of the crash was ultimately traced to oxygen generators, which had been removed from service and improperly secured and loaded into the plane's cargo hold.
The FBI became involved early on. Various players were charged with, among other things, criminal conspiracy to falsify records and violations of regulations concerning hazardous materials.
That turned out to be a bad idea. As soon as the FBI came on scene, witnesses clammed up. Many refused to talk unless granted immunity from prosecution. The NTSB’s work came, to some extent, to a standstill.
The lesson learned from the ValuJet crash was that, after an accident, determining the cause of the crash so that others can be prevented should be paramount. Meeting that objective requires a free flow of information. Except in the most egregious cases, aviation accidents should not be the subject of criminal proceedings.
On Monday, a French court convicted a US mechanic of involuntary manslaughter in connection with the July 2000 crash of the Air France Concorde. The details of the charges against the mechanic are here. Regardless of whether it sticks on appeal, the guilty verdict will negatively impact aviation safety for years to come.
The verdict will result in no additional compensation for the Concorde families. Nor will it bring about any additional improvements in industry maintenance practices. As discussed here, those improvements happened long ago as a result of the civil lawsuits. All that the guilty verdict will do is cause those involved in future aviation accident investigations to assert their 5th amendment right to keep mum for fear of criminal prosecution. That will make it only more difficult to determine the cause of an aviation accident, and to bring about the changes necessary to prevent similar accidents from happening again.
According to the NTSB, most aviation accidents are caused by pilot error. But aviation lawyers know that as many as half the cases that the NSTB says were the result of "pilot error" simply weren't.
The NTSB does its best to get an accident's probable cause right. The trouble is that, in almost every one of its cases, the NTSB turns to the manufacturer of the aircraft for help in figuring out what happened. In other words, the NSTB asks one of the entities who may have caused the crash for help investigating it. The NTSB calls this method of investigation the "party system." It presents an unavoidable conflict of interest. It's like asking the fox for help in figuring out what happened to the chickens.
More often than not, the "party system" results in the pilot taking the blame, even when the accident may really have been the manufacturer's fault. I've seen this happen dozens of times. I've written about it here and here and here.
NTSB investigators don't disagree. Well, at least one doesn't. From an anonymous email:
[W]e rarely, if ever, can exclude the manufacturers' representatives from access to every part and detail of an investigation. We (NTSB investigators) are open and forthright with these people. Unfortunately, such a candid exchange is rarely a two-way communication...And the process gets pretty cloudy when we send the wreckage, or part, to that manufacturer for teardown and examination. Sure, we're there 'in-charge' of the process...but that's just a formality.
But isn't the NTSB watching everything that the manufacturer is doing?
NTSB investigators 'observing' may be more like a dog watching television when it comes to the latest technology that is known only by those experts who made it in the first place. And it's even worse if an FAA Inspector stands in for the NTSB investigator. Then our 'eyes' may be almost an in-house friend of the manufacturer...
Predictable Probable Cause Findings
So, what do you expect as a result? 'Nothing wrong with our engine! (or accessory) (or special part)'...and that's what goes down in the report...That's the simple reason that 'statistics' cite 80% pilot error...This high rate is simply not accurate, it's far more often a system failure... but the NTSB cannot buck industry when we have to use the 'party system.'
Many think that, after it completes an investigation, the NTSB can order a stop to the dangerous practice that it determined was the cause of the aviation accident. Not so. The NTSB has no regulatory power at all. The only thing the NTSB can do after an investigation is make a safety recommendation and hope that the FAA will adopt it. As the NTSB puts it:
Our effectiveness depends on our reputation for . . . producing timely, well-considered recommendations to enhance transportation safety.
There is, however, a problem. The FAA is free to simply ignore the NTSB's recommendations. And it usually does just that.
I've written before about the FAA's failure to implement the NTSB's safety recommendations aimed at improving the safety of the air ambulance industry, reducing accidents from turboprop icing, and grounding dangerous and defective aircraft. Now the Washington Post has picked up on story.
Why do the NTSB's recommendations simply languish? According to the Post, it's because the FAA's rule change process is complex, and because the aviation industry fights change. But the Post notes that
. . .many believe that the biggest cause of delay lies with the FAA itself.
Count me among them.
Unfortunately, to get the FAA to implement the NTSB's safety recommendations, it seems as though there must first be some sort of public outcry followed by an act of Congress. At least, that was the case with the NTSB's recent recommendation aimed at reducing the number of accidents caused by pilots flying without adequate sleep.
There has to be a better way.
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, trafficContinue Reading...
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.
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.
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?
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.
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.
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.
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?
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."
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.
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.
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.
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."Continue Reading...
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.
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 upContinue Reading...
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.
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:
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?
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."
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.
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.