I write this at the end of October, the movie Sully has grossed $170 million. That translates to 20 million people who have seen the movie already, and the figure is likely to rise exponentially as people continue to view it in theaters and eventually on TV or the Internet.
That’s a good thing for the depiction of the highly skilled crew, the aircraft manufacturer and the water-borne rescuers whose combined actions saved 150 passengers and five crewmembers that frigid January morning in 2009 and made the “miracle” on the Hudson a reality. As aviation enthusiasts, I’m sure many of you—like me—have seen the movie, a dramatization of the Hudson River landing of USAir Flight 1549, an Airbus A320 that was crippled by a flock of birds ingested into the engines shortly after takeoff from New York La Guardia Airport.
But the movie has left many of us accident investigators concerned. Not about the technical accuracy of the accident depiction itself—actual transcripts were used—but about the NTSB accident investigation and specifically the questioning of the crew by NTSB investigators. Several of my former colleagues have been outspoken about what they feel is a negative portrayal of their roles in the accident investigation. And many at the NTSB are concerned about the effect the film will have on future cooperation of airmen and others, in aviation and other modes of transportation, with accident investigators.
While it will be hard to erase the memory of a dramatic big-screen movie, the least I can do is try to set the record straight here by reviewing the important, yet limited role, of the NTSB in crash investigations. And for those of you who think I approach this solely from the perspective of a 10-year NTSB Member, let me say that long before I was a Board Member, I participated in NTSB accident investigations as an airline union safety representative of witnesses being interviewed by NTSB accident investigators.
First of all, it’s important to know that the NTSB was established in 1967 as a part of the Department of Transportation “to promote transportation safety by conducting independent accident investigations and formulating safety improvement recommendations.” The NTSB’s role is to find out why an accident occurred—determining probable cause and making recommendations to prevent future accidents. It is not to determine anyone’s legal liability for damages or to prosecute anyone for any regulatory violations.
Congress soon recognized the importance of a truly independent accident investigation board and in 1974 passed the Independent Transportation Safety Board Act, establishing the NTSB as a stand-alone federal agency. In creating the independent board, Congress stated: “proper conduct of the responsibilities assigned to this Board requires rigorous investigation of accidents involving transportation modes regulated by other agencies of Government; demands continual review, appraisal and assessment of the operating practices and regulations of all such agencies; and calls for the making of conclusions and recommendations that may be critical of or adverse to any such agency or its officials. No Federal agency can properly perform such functions unless it is totally separate and independent from any other department…of the United States.”
Under the law, the Board Members are appointed by the President with the advice and consent of the Senate for five-year terms. All the Members are appointed on the basis of technical qualifications in the field of transportation safety, safety engineering and accident reconstruction. No more than three of the five Members can be from the same political party. Significantly, the law prohibits the use of the Board’s accident reports as evidence in legal proceedings for damages resulting from an accident. Again, this section was intended to free the NTSB from entanglements in lawsuits and to ensure open cooperation of all parties with knowledge of issues relevant to any accident. The Board’s role is to determine why an accident occurred and issue safety recommendations to prevent future accidents. The NTSB does not have regulatory authority; it cannot change a regulation to fix the problem or implement a change in process or procedure.
Part of the NTSB’s role in accident investigations is to interview crewmembers or other people who might have information that is relevant to an accident. It is the depiction of the crew interviews in the film Sully that has caused the most concern for accident investigators at the NTSB and members of the public, especially airmen. The interviews come across not only as adversarial but almost prosecutorial, as though the investigators were trying to make a case against the pilots. That depiction is so inaccurate. In all my years as an airline union rep and my years on the Board, I have never seen the adversarial tone depicted in this movie.
And if you worry that NTSB accident investigators could end up as witnesses at an enforcement hearing seeking before an NTSB law judge to suspend, revoke or fine an airman, don’t. The regulations are clear there too: “To encourage a free flow of information to the Board’s accident investigators, the Board disfavors the use of its personnel in enforcement proceedings.” The rules do not allow NTSB employees to be directly subpoenaed. And any subpoenas that are sought have to be addressed to the NTSB’s General Counsel and have to show clearly that the information requested “is not now, and was not otherwise, reasonably available from other sources.” In addition, NTSB employee opinion is not admissible nor is “any account of statements of a party made during the Board’s investigation of any accident.” To my knowledge, no NTSB employee has ever testified in an enforcement case.
Aircraft accidents are, fortunately, rare events. But an airman who does face an interview with an NTSB accident investigator doesn’t need to fret about having to go it alone. The NTSB regulations specifically provide that a witness is entitled to representation: “Any person interviewed by an authorized representative of the Board during the investigation, regardless of the form of the interview (sworn, unsworn, transcribed, not transcribed) has the right to be represented by an attorney or non-attorney representative.”