By ANN Columnist John Alan Cohan, Attorney at Law

There is still no clear answer as to what caused the midair collision between two private airplanes over northwest Denver on January 24, 2003. Both aircraft were destroyed by impact forces and fire, and five people were killed in the crash. Both pilots requested and received a service known as visual flight rules (VFR) flight following. One pilot, in a Piper Cheyenne, reported to Air Traffic Control that his altitude was 7,600 feet. The controller who was providing basic radar services to both pilots then issued a traffic advisory to the pilot, indicating that there was a Cessna at his twelve o’clock position and l mile, at 7,700 feet. The accident occurred shortly thereafter. There were broken and scattered clouds from 6,000 feet to l4,000 feet. Additionally, the sun had set about 20 minutes before the accident.

A frequent cause of airplane accidents involves spatial disorientation resulting from the pilot’s failure to maintain positive manual control of the airplane with the available flight instrumentation.

The National Transportation Safety Board ("NTSB") was established in l967 is an independent Federal agency "to promote transportation safety by conducting independent accident investigations and by formulating safety improvement recommendations" (Public Law 93-633). The NTSB has broad jurisdiction to inspect aviation, marine, railroad, pipeline and highway accidents. It is not part of the Department of Transportation, nor organizationally affiliated with the Federal Aviation Administration.

The NTSB investigates about 2,000 aviation accidents and incidents a year, and about 500 accidents in the other modes of transportation--rail, highway, marine and pipeline. They have 400 employees. Whenever an aviation accident occurs, NTSB investigators go to the accident scene as quickly as possible. They carry with them tools such as wrenches, screwdrivers, flashlights, tape recorders, cameras, and other equipment. They document the airframe wreckage and the accident scene, including calculation of impact angles to help determine the plane’s pre-impact course and altitude. They examine the engines, propellers and engine accessories. They make a study of the components of the plane’s hydraulic, electrical, pneumatic and associated systems, together with instruments and elements of the flight control system.

NTSB investigators reconstruct the air traffic services given the plane, including acquisition of ATC radar data and transcripts of controller-pilot radio transmissions. They gather all pertinent weather data from the National Weather Service, and sometimes from local TV stations, for a broad area around the accident scene. They investigate crew performance and all before-accident factors that might be involved in human error, including fatigue, medication, alcohol, drugs, medical histories, training, workload, equipment design and work environment.

They may impound the airplane and send the engine to a manufacturer or overhaul facility, the systems to an instrument manufacturer’s plant, and so on. They may make safety recommendations at any time during the course of an investigation.

If there is evidence of criminal wrongdoing the NTSB will bring in the FBI. An example of this was the crash of Pacific Southwest Airlines in San Luis Obispo, California, on December 7, l987. All 43 persons aboard died in the crash. Because of information conveyed over the radio by the flight crew
shortly before the crash, the FBI instituted an investigation parallel to the Safety Board’s investigation, to determine if a crime had been committed. They learned that a former employee of the airline had boarded the plane with a gun and, while the plane was in cruise flight, shot the flight crew, causing the aircraft to crash.

Safety recommendations are the most important part of the Safety Board’s mandate. They must address safety deficiencies immediately, and therefore often issue recommendations before the completion of investigations. Recommendations are based on findings of the investigation, and may address deficiencies that do not pertain directly to what is ultimately determined to be the cause of the accident. The NTSB was asked to assist NASA in the investigation of the recent loss of the space shuttle "Columbia."

For example, in the course of its investigation of the crash landing of a DC-10 in Sioux City, Iowa, in l989, the Board issued recommendations on four separate occasions before issuance of its final report. In the case of the crash of an ATR-72 in Roselawn, Indiana, in l994, the Board issued urgent safety recommendations within one week of the accident.

Some companies and institutions that own and operate aircraft, or which charter aircraft, may not be providing adequate oversight for travel policies pertaining to the safe operation of company aircraft. A model travel policy should provide that inspection and maintenance must be performed by an appropriately rated FAA-certified repair station, the manufacturer, or a manufacturer-authorized service center. Maintenance personnel must be appropriately rated and have been trained within the previous 5 years to maintain the aircraft type to be used. Model policy should also require that the aircraft be certified for flight into known icing conditions. Policy should also advise that passengers cannot enter the cockpit or distract the pilots when an aircraft is below 10,000 feet on takeoff or landing operations. A cautious and prudent policy should also indicate that all flights are to be operated on an IFR flight plan and that aircraft may not depart into forecast hazardous weather conditions, including severe icing, thunderstorms, or severe turbulence or windshear.

FMI: John Alan Cohan is a lawyer based in Los Angeles specializing in tax and aviation law. He can be reached by e-mail at johnalancohan@aol.com