David K. Tochen General Counsel Aviation Law and Insurance Symposium January 2020-23,2015, Orlando, FL Facing the Future in Accident Investigation and Enforcement Litigation: New Frontiers
2 U.S. General Aviation 1221accidents, 253 fatalities U.S. Part 135 Carriers 39 accidents, 8 fatalities 2014 Data on Aviation Accidents (Preliminary) U.S. Part 121 Carriers 28 accidents, 0 fatalities
3 Advises on evidence and wreckage handling issues and family assistance issues Reviews NTSB subpoenas before they are served (several hundred issued per year) Establishes contact with local authorities and stakeholders Explains the NTSB party system and information sharing issues to party counsel Assists with onon-scene legal issues Since Fall 2012, the NTSB has launched an attorney to selected major aviation and nonnon-aviation accidents General Counsel Support to Accident Investigations
4 NTSB conducts the investigation and determines probable cause Leverages technical expertise Invites companies and organizations to become parties to the investigation NTSB conducts investigations under its party system The Party System, System, 49 CFR 831.11
5 Parties are limited to those persons, gov t agencies, companies, & associations whose employees, functions, activities, or products were involved in the accident and who can provide suitable qualified technical personnel to actively assist in the field investigation. The Party System, System, 49 CFR 831.11
6 Provide factual information given to family and press Release wreckage, if possible, with approval of the owner Share investigative plans Permit establishment of claims The investigatorinvestigator-in in--charge (IIC) and the Office of General Counsel work with insurance personnel and attorneys consistent with investigative needs to: Excluded from Party System are: any person who also represents claimants or insurers, and any person who occupies a legal position. position. 831.11(a)(3). The Party System, System, 49 CFR 831.11
7 FAA license suspension/revocation proceedings are heard first by an NTSB administrative law judge Appeals are heard by the full NTSB Board See Attachment 1 for a list of decided and pending judicial challenges to NTSB Opinions and Orders Split enforcement Model NTSB s Appellate Function
8 A. NTSB Authority to Investigate: 49 USC 1131(a)(1) The National Transportation Safety Board shall investigate or have investigated (in detail the Board prescribes) and establish the facts, circumstances, and cause or probable cause of-- NTSB Investigation of Commercial Space and UAS Accidents I. Commercial Space Accidents
9 (F) any other accident related to the transportation of individuals or property when the Board decides-(i) the accident is catastrophic; (ii) the accident involves problems of a recurring character; or (iii) the investigation of the accident would carry out this chapter. NTSB Investigation of Commercial Space and UAS Accidents (con t)
10 Also, see NTSB legal opinion (Appendix A) to NTSB Accident Report on InIn-Flight Breakup During Test Flight, Scaled Composites SpaceShipTwo, N339SS, Near Koehn Dry Lake, California, October 31, 31, 2014. http://www.ntsb.gov/investigations/accide http:// www.ntsb.gov/investigations/accide ntreports/pages/aar1502.aspx NTSB Investigation of Commercial Space and UAS Accidents (con t)
11 1986 assisted NASA in its investigation of the Space Shuttle Challenger accident 1993 led the investigation of a procedural anomaly involving an Orbital Sciences Corp. expendable launch vehicle. Previous NTSB investigations of commercial space accidents: NTSB Investigation of Commercial Space and UAS Accidents (con t)
12 2003 assisted the Columbia Accident Investigation Board in its investigation of the Space Shuttle Columbia accident NTSB Investigation of Commercial Space and UAS Accidents (con t)
13 NTSB investigated a 5/1/2015 crash shortly after takeoff of a Titan Solara 50 solarsolar-powered unmanned experimental aircraft near Otto, New Mexico. The aircraft was operated as a scaled, proof of concept test flight. NTSB investigated a 4/25/2006 Predator B collision with the terrain in Nogales, AZ following a loss of engine power while patrolling the southern U.S. border on a Customs and Border Protection mission. 2. UAS NTSB Investigation of Commercial Space and UAS Accidents (con t)
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