Why does the NTSB prepare reports of aircraft accidents?
Who can participate in an NTSB Investigation? 
Does the NTSB Investigator determine legal liability?
How can you get NTSB Reports?
What is an NTSB Report?
How reliable is the information in an NTSB Report?
Can the NTSB Report be admittedi in a trial?
Can the NTSB Investigator be called to testify at trial?
Conclusion

WHY DOES THE NATIONAL TRANSPORTATION SAFETY BOARD PREPARE  REPORTS OF AIRCRAFT ACCIDENTS?

 The NTSB has delegated the responsibility to investigate accidents involving agricultural, homebuilt and experimental aircraft to the FAA.  This delegation applies to approximately ten percent of aircraft accident investigations.  Accidents of ultralight craft of less than 256 pounds are not investigated.

 The purpose of NTSB investigations and reports is to prevent, or reduce the likelihood of, future accidents.  49 U.S.C. App. § 1903(a)(3).  In carrying out its mandate, the NTSB is empowered "to examine and test to the extent necessary any civil aircraft, aircraft engine, propeller, appliance, or property aboard an aircraft involved in an accident in air commerce."  49 U.S.C. App § 1441(c). 

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WHO CAN PARTICIPATE IN AN NTSB INVESTIGATION?

 The only entity entitled by statute to participate in an NTSB investigation is the FAA.  49 U.S.C. App. § 1441(g).  The right of other entities to participate in NTSB investigations and to have access to accident aircraft wreckage is covered by regulations found at 49 C.F.R. §§ 831.11(a) and 831.12(a).  These regulations provide, essentially, that participation in the investigation and access to the wreckage is controlled by the NTSB Investigator-In-Charge.  Neither owners nor insurers have a right to participate in an investigation.

 The version of the NTSB Investigation Manual - Aviation Accidents and Incidents - that was in effect before June 27, 1988, created a presumption that accident aircraft owners would be permitted to participate in accident investigations if the Investigator-In-Charge was convinced that the owner could assist in the investigation.  This is no longer in effect; now the presumption is that the owner, and the insurer who stands in the shoes of the owner, is not allowed to participate in the investigation.

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DOES THE NTSB INVESTIGATOR DETERMINE LEGAL LIABILITY?

 The NTSB investigator approaches an accident investigation from the point of view of aviation safety.  He or she is required by regulation to investigate an accident and make recommendations that will help to prevent this type of accident from occurring in the future.  He is not concerned with a determination of liability or even blame, although his report will inevitably allocate blame. 

 Above all, an NTSB investigator cannot be expected to anticipate legal issues relating to liability when he writes his report.  The investigator's point of view must be kept in mind when reading an NTSB report.  Just because an NTSB investigator did not attach any fault or blame to the alleged basis for a claim in his report does not mean that there is no legal liability as a result of that factor.  To assert legal liability, the law requires only that an alleged cause must have been a "substantial factor" in causing an accident. 

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HOW CAN YOU GET NTSB REPORTS?

 It is the policy of the NTSB to make information available to the public to the greatest extent possible.  49 C.F.R. § 801.2.  The NTSB is required by regulation to make all NTSB reports available for inspection and copying in the public reference room at NTSB headquarters.  If you wish to personally inspect and copy an NTSB report, all NTSB reports are available at the Public Inquiry Office of the NTSB, 490 L'Enfant Plaza, Room 5111, Washington, D.C.  A self-service copying machine is available and copies may be made for eleven cents per page.  Hours are from 8:45 a.m. to 4:45 p.m.  You may contact the NTSB Public Inquiry Office by telephone at (202) 382-6735, FAX (202) 382-6008. 

 However, if you do not wish to go to Washington, D.C. and copy  the report yourself, you may order copies of NTSB reports from a commercial service. The most convenient and economical way of getting NTSB reports is to order them from the National Technical Information Service.  The National Technical Information Service is a commercial reproduction firm that has a contract to supply NTSB reports to the public for a reasonable charge.

 NTSB reports may be ordered from the National Technical Information Service by writing to:

 National Technical Information Service
 5285 Port Royal Road
 Springfield, VA 22161

 Reports may be ordered by telephone by calling (703)487-4650 between 8:30 a.m. and 5:00 p.m. eastern time.  They will accept Visa, Mastercard or American Express.  To order the report of an aircraft accident, you should have at least the date and location of the accident.  The current charges for the various reports are as follows:

Type of report:

• Preliminary:

The Preliminary is normally available to the public within approximately 10 days after an accident.  Cost:  $4.00 per report

• Docket:

Note: This is the document that is normally called the "FACTUAL REPORT AVIATION ACCIDENT/ INCIDENT"  or the NTSB Report.  The Docket is normally available to the public within approximately 6 months after an accident.  The price is determined by the final page count.  Color copier photos are available upon request for an additional fee. Cost:   $0.11 per page plus $6.00 handling fee.

• Probable Cause:

The Probable Cause is normally available to the public within approximately 1 year after an accident. Cost   $4.00 per report.

• Video Tapes: 

Video tapes of board meetings and/or accident scenes are furnished when available.  Cost:   $20.00 per video plus $6.00 handling fee.

• Color Copier Photos:

Color copier photos are available upon request.  Cost:   $3.00 per photo.

• 8 X 10 Glosses:

Glossy photos are available upon request.  Cost:   $4.00 per photo

• Certified Copy:

To obtain certified copies of the NTSB Accident Cases the cost will be as stated above plus a $15.00 handling fee for each document.

• Research Fee:

A $15.00-an-hour fee for any research beyond the normal with a one (1) hour minimum charge.

• Rush Service:

A $15.00 fee is charged for Rush orders processed within 48 hours and shipped by overnight courier in the U.S. or by Air Mail outside the U.S.

• Fax Service:

Preliminary and Probable Cause reports, if available, can be faxed upon request.  Cost:   $10.00 per report.

• Standing Order:

To obtain all information released pertaining to a particular accident, request standing order service.  An NTIS Deposit Account is required, with a minimum deposit of $100.00 or authorization to charge your credit card as documents are released by NTSB.

WHAT IS IN AN NTSB REPORT? 

 The heart of the NTSB report of an aviation case is NTSB Form 6120.4 entitled "Factual Report Aviation."  It consists of a form which calls for 213 separate items of information.  Normally, the most informative item in the form is item number 15, the "Narrative Statement of Facts, Conditions and Circumstances Pertinent to the Accident/Incident."  The Narrative Statement should include all of the important information that is relevant to the accident.  Typically, the Narrative Statement will  include the history of the flight, injuries to persons, damage to property, crew information, aircraft information, weather information, the status of aids to navigation, communications between the crew of the accident aircraft and ground stations, the status of airport and ground facilities, wreckage and impact information, medical and pathological information, fire information, survival aspects and tests and research conducted in the course of the investigation.

 The Investigator's Manual that governs the preparation of NTSB reports requires that the report of field investigations be written in ICAO outline, i.e., according to the ICAO Manual of Aircraft Accident Investigation.  The narrative portion of the report must be completely factual and in no way analytical or judgmental in content.

 The information compiled by the NTSB investigator in NTSB Form 6120.4 provides the majority of the factual information that is needed to understand the sequence of events that led to the accident.  It will not necessarily tell an adjuster or an attorney what he needs to know to answer the questions raised by a claim or a complaint.  The investigator will look into the matters that appear to him to be pertinent; he will not necessarily look into all of the issues that may be raised by an insurance claim or by a complaint filed in court.  For this reason, the NTSB report should be considered as a good place to start an investigation but it should never be considered to be the final word on an accident. 

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HOW RELIABLE IS THE INFORMATION IN AN NTSB REPORT?

 When the NTSB investigation report states matters that the investigator gained from direct observation, such as location and condition of wreckage as observed at the scene and other conditions at the scene of the accident which have changed and cannot now be independently verified, the NTSB report may be the best, and in some cases the only, information available on the subject.  In other respects, such as witness statements and conclusions drawn by the investigator from facts which he observed, the NTSB report should never be accepted as the last word on the subject. 

 Witness statements in an NTSB report, especially, should not be accepted as a complete statement of everything that a witness knows about an accident.  The NTSB investigator typically will give or mail a witness an NTSB Form 6120.11, Statement of Witness,  and ask him to tell what he knows about the accident or the conditions as they existed at the time of the accident.  The form asks the witness to "Tell in your words what you saw or heard before and at the time the accident occurred."  In most cases, the NTSB investigator will not (and cannot) have identified the questions that are important to a determination of cause, much less liability, at the time he asks the witnesses for a statement.  Needless to say, the investigator will not be able to ask the witness about specific issues if he has not yet identified  the issues himself.  The witness seldom knows what is pertinent and what is not.  In the absence of any guidance as to what information is pertinent, the witness typically will focus on what made the strongest impression on him.  For these reasons, the witness statements are frequently of little or no use to a determination of cause and even less use in finding of liability.

 For example, in a recent trial in federal court in San Diego involving an accident in which a Beech Baron had flown into power lines approximately 2 miles short of the landing runway, one of the issues in the case was whether or not the approach lights to the landing runway were working.  A pilot witness, who had flown the same approach immediately in front of the accident aircraft, had given a statement to the NTSB investigator in which he did not mention whether or not the approach lights were working.  The witness did not mention the approach lights because he did not know that their operation was an issue.  The NTSB investigator did not tell the witness that the approach lights were in issue because he did not think that they were in issue; he thought that they were operating normally.  The investigator had no way of knowing what  the plaintiff's attorneys and investigators would focus on when they got the case.  However, when asked, the witness said that he had seen the approach lights on two approaches, both times immediately in front of the accident aircraft.

 The lesson is that witnesses should be located and interviewed and asked specific questions about everything that may become an issue, even though the NTSB investigator may have done a competent job of dealing with all of the issues as he saw them at the time.  The NTSB investigator simply cannot anticipate what may become issues at a later time after the plaintiffs' attorneys, investigators and experts have become involved. 

 The NTSB investigator's statements of opinion regarding technical matters should never be accepted as having the same degree of reliability as the statements of fact which the investigator gained by direct observation.  Opinions of an investigator should be looked upon with the same degree of skepticism as any other opinions.  An NTSB investigator may be called upon to gather evidence and to give opinions about technical matters which he may or may not be qualified to give.  This is not a criticism of NTSB investigators, it simply is not possible to be competent to give opinions on every field of expertise that may be involved in an aircraft accident.  In most cases, when an NTSB investigator is not competent to give an opinion in a given technical field, he will ask for technical advice from manufacturer's representatives or from the NTSB technical staff.

 It is important to separate the opinions of outside experts, including those of NTSB technical staff, from the opinions of the investigator.  Normally, if specifically asked,  the NTSB investigator will readily state that he is not competent to give an opinion about a technical question outside his field of expertise and he or she will make it clear that the opinions expressed on technical questions are those of the experts with which he or she has consulted.  However, the report may not make it clear that the opinion expressed is that of someone else and not that of the NTSB investigator and may not  even make it clear that the statement is opinion and not directly-observed fact. 

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CAN THE NTSB REPORT BE ADMITTED IN A TRIAL?

 By statute, NTSB reports may not be admitted into evidence at trial.  However, judges, as they are wont to do, have held that Congress could not have meant what they said and, until very recently, generally held that NTSB reports, except for the findings and conclusions, could be admitted at trial.  At least one recent decision involving the NTSB investigation of the United Airlines DC-10 accident at Sioux City, Iowa, went back to square one and said that the law means what it says and the NTSB report would not be admitted.  This is much too sensible and cannot last.

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CAN THE NTSB INVESTIGATOR BE CALLED TO TESTIFY AT TRIAL?

 Answer: NO!  The NTSB investigator may not be called to testify at a trial but he or she may deposed.  Ordinarily, the NTSB investigator may only be deposed one time.  For this reason, the party wishing to depose the NTSB investigator should make sure that all parties, including all potential parties,  have been identified and notified of the deposition before the deposition is taken.  Otherwise, a party who was not notified of the deposition and did not attend could attack the admission of the deposition testimony at trial.

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CONCLUSION

 NTSB reports of aircraft accidents are prepared for the purpose of finding and fixing blame for the subject accident with the objective of preventing future accidents.  They are not prepared for the purpose of establishing legal liability for insurance claims or for litigation. 

 Information in the NTSB report which reports the direct observation of the investigator is highly accurate and can be and should be relied upon.  Statements of witnesses should never be taken as complete statements of everything the witness knows about the accident.  Any witness who was in a position to see anything pertinent should be interviewed as soon as possible after the accident to find out what the witness knows about it.  Ask specific questions about potential issues, do not assume that because a witness has been asked to "tell everything you know about (an incident)" that he or she understands what you or the investigator is looking for. 

 Statements of opinion in the report which state the opinion of the investigator or others should never be taken at face value but should be identified as statements of opinion when the investigator is deposed. 

 NTSB investigators may not be called at trial and the report cannot be admitted into evidence.  If you want to use the results of the NTSB investigation, you must depose the NTSB investigator.  He can only be deposed one time.
 
 
 

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