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Luncheon Remarks Before American Bar Association Tort Trial & Insurance Practice Section, Aviation and Space Law Committee, Washington, DC
Robert L. Sumwalt
Luncheon Remarks Before American Bar Association Tort Trial & Insurance Practice Section, Aviation and Space Law Committee, Washington, DC

Thank you very much. I'm honored to be asked to be your luncheon speaker.

As you know, this is the 80th anniversary of the ABA's Tort Trial and Insurance Practice Section (TIPS). The year TIPS was founded, 1932, the airline fatality rate was 1500 times greater than that of the railroads and 900 times greater than that that of busses. In 1932, the airlines had 108 accidents, 16 of which were fatal (Wensveen, 2007).

Today, I'm pleased to say things are vastly better - the U.S. air carrier industry has enjoyed a remarkable period free of fatal accidents over the past 3 1/2 years. However, we continue to see unacceptably high numbers of accidents in General Aviation (GA).

Last year there were 1,466 GA accidents, 263 of which were fatal, leading to 444 fatalities.

On a normalized basis of flight hours flown, the GA accident rate is 40 times greater than for U.S. scheduled air carriers.

Although even one accident is one too many, the NTSB is very concerned about the high GA accident rate.

But, this high accident rate brings opportunity for improvement.

We have placed GA safety on our Most Wanted List of Transportation Safety Improvements.

This year alone, the Board has:

  • Held a public hearing on Air Races and Air Show safety;
  • Conducted a forum on GA safety;
  • Held forum on GA Search and Rescue; and,
  • Conducted a study on Experimental Amateur-Built aircraft (EAB). We learned that EAB aircraft have a fatal accident rate that is approximately four times greater than non-EAB aircraft.


So, we are trying to be proactive in our approach to transportation safety.

I suspect the very fact that you are attending this conference means that, from time to time, you have clients that are involved in aviation accidents.

With that in mind, let me give you a few "take home" points that may serve you and your clients well.

First, my strongest recommendation is that your client organizations become parties to NTSB investigations. As you know, NTSB rules allow for organizations that can provide technical expertise to the investigation to become parties to the investigation.

In a former life, when I was a pilot for US Airways, I participated in a few NTSB investigations through the party system. From both sides, I see advantages.

One benefit is that the parties provide technical assistance to the NTSB's evidence documentation and fact-finding activities. When piecing an airplane back together, who better can recognize the aircraft parts than those who designed and manufactured them? Who knows an airline's procedures better than the pilots who fly for that airline? Who has better access to training records than the airline that employed the pilots?

Another benefit is the ability to get immediate corrective action when problems are noted during the investigation. Last year I was in Yuma, Arizona, after a Southwest Airlines 737 had approximately six feet of the fuselage open up in-flight. While in Yuma, some anomalies were noted - anomalies that could be traced back to the manufacturing of the aircraft. Boeing was a party to the investigation. We all arrived in Yuma on a Saturday - the day after the event - and those manufacturing anomalies were noted that day. Boeing started immediately on determining a corrective action. The next day, Boeing issued a Service Bulletin, and the following day, FAA issued an Airworthiness Directive. If Boeing and FAA were not parties to the investigation, I dare say things could not have happened this quickly.

Finally, I think a party system ensures transparency. By having the manufacturer watching over the shoulders of the FAA, and the pilots' union watching over the manufacturer, and everyone watching the NTSB, it provides checks and balances that everything is being looked at - that no stone is being left unturned.

Occasionally -- I've only seen it a few times in my six years at the Board, we are disappointed to find that some party doesn't follow our rules, the directions of the NTSB investigator-in-charge or otherwise took actions that were prejudicial to the investigation, and we have to remove their party status. Our rules aren't difficult, but they do require a clear understanding of them. So, my suggestion is learn our rules before an accident - it's obviously a lot easier to learn when you are not in the "heat of the battle," so to speak. And, once called into action, make sure you abide by our rules.

And, regarding the NTSB's rules, of special interest to everyone in this room is the statement in the CFRs that says that a party to an NTSB investigation may not be represented in any investigation by a person occupying a legal position or representing claimants or insurers. A party representative must also certify that his or her participation is to assist the NTSB safety investigation and not for the purposes of preparing for litigation.

Why is that? Quite simply, the NTSB's investigation is all about safety. We want the focus to be on finding and correcting the cause of the accident, and not on litigation.

As I indicated earlier, only those organizations that can provide technical expertise or knowledge to an NTSB investigation are granted party status, and only those persons who can provide the NTSB with needed technical expertise or specialized knowledge are permitted to participate in an investigation. Family members are not precluded from providing input during the NTSB's accident investigation when they can provide information concerning relevant facts, such as a crewmember's possible fatigue or medical condition prior to an accident.

Because we are aware that others, including family members, have the need for information regarding our investigations, we have developed mechanisms to ensure that relevant information is provided. So, while there often is no role for family members of a passenger to participate in the accident investigation, families do have complete access to factual information on the investigation as it becomes available.

The second "take home" point is that, as a party member, you are entitled to make a party submission to express your views on the facts, analysis, probable cause, and recommendations. Please take advantage of this opportunity.

Not all aviation accidents go to the Board for deliberation. The vast majority are signed off by delegated authority by the director of the NTSB's office of aviation safety. But, for those that do go to the Board, I feel the submissions are very valuable to my getting a more complete understanding of the accident.

I view the role of a Board Member as providing oversight of our staff's report. I only learn what staff tells me, unless I get into the public docket and study that, and I read your party submissions. (And, I make a point of doing both.) These party submissions are your opportunity to tell me what you think about the accident. Your submissions are a valuable part of a Board Member's information gathering process. I cannot over-emphasize the importance of this.

Although parties are encouraged to submit their own proposed findings and analysis regarding an accident, at the appropriate time, NTSB staff independently conducts its own analyses of the factual information developed during the investigation.

The third point: if an accident report is going to the full Board for deliberation, I highly suggest you meet with the Board Members before the board meeting. Most people aren't even aware that they can do this. Concerning the timing of these meetings, each Board Member has his or her own preference, but for me, I prefer meeting close to the Board Meeting date. Some parties want to come in months before the Board Meeting. For me, that doesn't work as well as when the party comes in right before the Board Meeting. If we meet too early in the process, I likely am not that familiar with the accident specifics. I'd prefer to have you come in just a few days before the Board Meeting because by then, I've read the draft report, I've met with staff, I've written my memo to staff, and I've formed opinions on the issues. I have gone through the docket, read your party submission, and can therefore ask questions about it.

Because of the requirements of the Government in the Sunshine Act, you will need schedule these meetings with Board Members individually; any meeting where three of more Board members engage in official agency business must be open to the public.

So, to summarize, things I feel are valuable for your clients are to become a party member to NTSB's investigation, make a party submission, and finally, if the product is going to the Board for deliberations, make a point to meet individually with the Board Members.

The NTSB has a plaque outside its Training Center that states, "From tragedy we draw knowledge to improve the safety of us all."

That's what we do at the NTSB - we try to take something tragic and learn from it so that others don't have to suffer the same consequences.

The agency has been doing this for 45 1/2 years, and we generally do it pretty darn well. Sometimes, in spite of trying to do our best, we miss something. And this leads to my last "take home" point: we have provisions for Petition for Reconsideration. The NTSB rules provide that if you have new information that may be relevant to the investigation or if there is erroneous information in the record, a party may file a Petition for Reconsideration.

We do review those and in some cases, the petition is granted in whole or in part. Please keep this in mind.

So, I hope these points will be useful to you, as we work together - government and private sector alike - to improve the safety of the traveling public.

Thank you very much.

Wensveen, J. (2007). Air Transportation: A management perspective. Farnham, England: Ashgate.