THE NATIONAL TRANSPORTATION SAFETY BOARD AND RAILROAD ACCIDENT INVESTIGATIONS

You own a small engineering firm that designs equipment for a manufacturer of railroad track components in the United States. While driving to work you hear that there has been a serious train accident on a rail system recently serviced by your company. The news also states that the National Transportation Safety Board (“NTSB”) is being dispatched to the scene.

You ask yourself the question: what does the NTSB have to do with train wrecks? The simple answer is “a lot”. Indeed, there is a possibility that before day’s end you may be receiving a formal invitation from the NTSB to visit the accident site and introduce yourself to them if there is a possibility that your company’s equipment had something to do with the events leading up to the accident or the accident itself.

By way of background, the NTSB is an independent U.S. government investigative agency responsible for determining the probable cause of civil transportation accidents. It also has the duty of promoting transportation safety. The agency investigates every civil aviation casualty in the United States as well as significant accidents in other modes of transpiration such as railroads, maritime casualties, pipeline incidents, certain highway accidents, and hazardous material spills relating to transportation.

The NTSB was established as an independent federal agency in 1967. During 1974, Congress enacted the Independent Safety Board Act which formalized the NTSB’s independence. The agency is part of the Executive Branch of the government, but reports directly to the President and Congress. The NTSB is headed by five political appointed board members selected by the President for five year terms, one of whom is designated Chairman by the President and then approved by the Senate for a 2 year term. No more than three members can be from the same political party.

NTSB is normally the lead organization in the investigation of serious transportation accidents. However, this lead can be relinquished to other organizations if the US Attorney General declares the matter to be an intentional criminal act. The U.S. Department of Justice was in charge of the 9/11 investigation.

The NTSB differs from other agencies in that it has no enforcement or regulatory powers. However, the agency is no paper tiger. It is given more legal clout than most government agencies in order to enable it to determine the probable cause of accidents. The Board may conduct public hearings and subpoena witnesses to testify. It may also obtain court orders for search and seizures. It will conduct investigations to determine “probable cause” and issue safety recommendations to prevent similar accidents in the future. It is then up to the parties and entities involved with the accident to act upon the NTSB’s recommendations. Historically, most of the Board’s recommendations have been implemented.

With respect to rail accidents, there are two tiers of NTSB involvement – major accident investigations and regional accident investigations. All U.S. railroads are required to notify the NTSB’s National Response Center by telephone within 2 to 4 hours after certain accidents. The particulars of the incident are immediately relayed to the NTSB office closest to the accident scene. The Board then quickly decides whether the matter will be treated as a major or regional investigation.

Major investigations are handled from NTSB Headquarters in Washington, D.C. The investigation will usually start with the creation of a “Go Team” comprised of an Investigator-in Charge (IIC), along with NTSB specialists working in technical areas relating to the particular accident. Within hours of the incident the Go Team will be on its way to the accident site.

During the first day of the investigation, the IIC will hold an organizational meeting to set the agenda and to grant “party status” to government agencies, companies, and associations whose employees, functions, activities, or products may have been involved in the accident and who can provide qualified technical personnel to actively assist in the investigation. Private lawyers and insurance companies will not be invited to participate based upon the premise that adversarial interested parties should be excluded from the investigation process. The NTSB’s job is to determine the probable cause of the accident, not the rights or liabilities of the parties involved in the incident. The purpose of the exercise is not to point fingers, but rather to prevent the same incident from happening again.

The investigation is strictly fact finding and is intended to quickly collect information that will assist the NTSB in its examination of the safety issues arising from the accident. The Board will then issue a report on what it feels the evidence shows to be the probable cause. The report will contain, in narrative form, the Board’s actual findings and analysis leading to the probable cause. The time frame for issuing the report is usually about one year.

NTSB reports cannot be admitted into evidence during civil liability trials that often follow in the wake of an investigation. Neither can a NTSB investigator be subpoenaed to testify at trial. However, the investigator can be deposed once on factual information obtained during the course of the investigation. Expert or opinion testimony from the investigator is not permitted. Trial lawyers must still hire their own experts to analyze evidence to reach conclusions as to liability when proving or defending a railroad accident case. However, the NTSB report can prove to be the corner stone for the commencement of a private investigation into issues of liability.

Requests for general information on the NTSB railroad investigation procedures should be made to NTSB Headquarters, 490 L’Enfant Plaza, S.W., Washington, DC, 20594. Telephone (202) 314-6000. Furthermore, in accordance with the NTSB Freedom of Information Act (FOIA), all accident investigation public dockets can now be obtained from the NTSB public website. The link to the list of public dockets may be found at: http://www.ntsb.gov/info/foia_fri-dockets.htm.


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