AOPA Pilot Magazine - September 2014 - 24

PILOT COUNSEL

Aircraft 'accidents'
and mishaps

BY JOHN S. YODICE

Knowing the difference makes a difference

JOHN S. YODICE

is partner in the law
firm that manages
the AOPA Legal
Services Plan.

THE NTSB'S official definition of an aircraft accident
is different from what is more frequently referred to
colloquially as an aircraft accident. The difference
has important consequences to many pilots, especially how it affects a pilot's reporting requirements
("Pilot Counsel: Accident Notification and Reporting,"
February 1990 AOPA Pilot), and how it affects the "getout-of-jail-free" ASRS program ("Pilot Counsel: Don't
Wait Too Long," AOPA Pilot August 2014). And reporting an aircraft "accident" that may or may not meet the
technical NTSB definition often can lead to an FAA
enforcement action against the pilot.
The FAA and the NTSB are federal agencies independent of one another. The NTSB is charged with
investigating aircraft accidents, and it is the NTSB rules
(NTSB rules 830.5 and 6) that require a pilot (or other
operator) to immediately notify the nearest NTSB office
of an aircraft accident, and to follow up with an accident report (there is no regulatory requirement for a
pilot to notify the FAA, although that is one way to indirectly notify the NTSB). Only aircraft mishaps meeting
the official definition need be reported.
According to NTSB Rule 830.2, "Aircraft accident
means an occurrence associated with the operation of
an aircraft which takes place between the time any person boards the aircraft with the intention of flight and
all such persons have disembarked, and in which any
person suffers death or serious injury, or in which the
aircraft receives substantial damage" (my emphasis).
The NTSB definitions of "serious injury" and "substantial damage" remove many aircraft mishaps that would
otherwise be considered accidents.
The definition says, "Serious injury means any
injury, which: (1) Requires hospitalization for more than
48 hours, commencing within 7 days from the date of
injury was received; (2) results in a fracture of any bone
(except simple fractures of fingers, toes, or nose); (3)
causes severe hemorrhages, nerve, muscle, or tendon
damage; (4) involves any internal organ; or (5) involves
second- or third-degree burns, or any burns affecting
more than 5 percent of the body surface." Many more
injuries and hospitalizations could be incurred in an
aircraft mishap that would not make the mishap technically a defined "accident."
There is a similar limiting effect with respect to
substantial damage. Some damages are specifically

24 | AOPA PILOT September 2014

excluded from the definition of an accident. In general: "Substantial damage means damage or failure,
which adversely affects the structural strength, performance, or flight characteristics of the aircraft, and
which would normally require major repair or replacement of the affected component. [But note the following
that are specifically excluded from "substantial damage":] Engine failure or damage limited to an engine
if only one engine fails or is damaged; bent fairings or
cowling; dented skin; small punctured holes in the skin
or fabric; ground damage to rotor or propeller blades;
and damage to landing gear, wheels, tires, flaps, engine
accessories, brakes, or wing tips are not considered 'substantial damage' for the purpose of this part." In my
seminars for pilots I frequently ask what classic mishap could fit into this exclusion, and pilots are quick to
respond-a gear-up landing!
A pilot's ASRS report to NASA seeking a waiver of
disciplinary action for an incident that might involve an
FAR violation will not be effective if it reports an aircraft
accident. It is important to ensure that the incident being
reported could not be mistakenly identified by NASA as
an accident. We recommend that a pilot filing a ASRS
report positively state in the report that the incident is
not an accident within the meaning of the NTSB definition, and explain why by reference to the definition.
Lastly, aircraft mishaps could lead to FAA enforcement action. While many mishaps, especially serious
accidents, routinely come to the attention of the FAA,
many less-serious accidents such as fender-benders may
not. It does not make sense for a pilot to be the one to
call it to the attention of the FAA, especially if there is
some chance that it will pass unnoticed. So, before an
aircraft mishap is officially reported, a pilot may want
to make certain that it meets the NTSB definition of an
accident. If a notification and report are required, they
should go to the NTSB, and not the FAA.
This column should not be misunderstood. I
recognize that the FAA and NTSB have important
responsibilities in safety enforcement and accident
investigation. They are just doing their jobs, for which
we are appreciative. On the other hand, my job is to
counsel pilots, even if it sometimes could be taken as
critical of the FAA and NTSB.
AOPA
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AOPA Pilot Magazine - September 2014

Table of Contents for the Digital Edition of AOPA Pilot Magazine - September 2014