Two American Airlines pilots involved in a runway incursion in JFK refused to take part in an NTSB interview – because it would be recorded.

We have previously looked at this incident, which took place on the 13th of January this year. The crew of a Delta Air Lines 737-900ER had to reject their takeoff at high speed when an American Airlines 777 entered the runway in front of them. It appears that the American Airlines crew believed that they would depart from runway 31L.

But their taxi clearance would have taken them to runway 4L, which was used for all JFK departures at that time. When the controller cleared the crew to cross a runway, the pilots likely assumed that they could cross 4L, to make their way to 31L. But it is worth mentioning that this clearance to cross a runway came when they were still some distance away from it.

The NTSB released its preliminary report into this incident this week, after receiving written statements from the pilots in both aircraft. There were two pilots in the cockpit of the Delta 737 and three on the American Airlines 777, which would fly to London Heathrow (EGLL). The NTSB did not ask to interview the Delta crew, finding their written submissions to be sufficient.

NTSB, Pilots, And Electronic Recordings

But the same wasn’t true of the statements of the American Airlines crew, which played a more central role in the incident. According to the NTSB, American Airlines cleared the flight schedules of the three pilots, to facilitate such an interview. In a later statement, the NTSB clarified that two of the interviews would have been virtual and one in person. The NTSB arranged for a court reporter to be present at two of the would-be interviews.

According to the NTSB and APA, the union representing these American Airlines pilots, they refused to participate in interviews because they would be electronically recorded. The APA also states that in the past, the NTSB used stenographers, to record these in-person interviews. It adds that the NTSB “recently” moved to interview recordings for pilots and others, without indicating when this alleged change happened.

The NTSB stated that the reason it wants to keep accurate recordings when it interviews these pilots is that the cockpit voice recorder (CVR) of their flight was later overwritten. Normally, this recording would provide an accurate record of how the incident evolved. But because the CVR only records two hours, and this transatlantic flight eventually went ahead, its recording is lost. The NTSB also re-iterated its standing request for CVRs to record at least 25 hours.

NTSB Issues Subpoenas To Pilots

In addition to the pilots, the NTSB also interviewed the air traffic controllers that handled this incident. The agency recorded these interviews as well. The NTSB has now issued subpoenas, to compel the three crew members to participate in in-person interviews at its headquarters. The three pilots have seven days to respond to their subpoenas.

In the eyes of many, this situation sets a very disturbing precedent. Agencies around the world that conduct investigations into air accidents and incidents rely on specific ICAO guidelines, regarding the reports’ format and content. And one thing that these reports have in common, is a statement to the effect that they are NOT punitive, and that their purpose is to improve safety ONLY.

To that end, at the end of every NTSB final report, there is now a text stating (in part):

“The Independent Safety Board Act, as codified at 49 U.S.C. Section 1154(b), precludes the admission into evidence or use of any part of an NTSB report related to an incident or accident in a civil action for damages resulting from a matter mentioned in the report.”

Dangers to Just Culture

The refusal of these pilots and their union to participate in the NTSB investigation seems to contradict the above. However, the APA points out that subjecting pilots to recorded interviews could result in “less candid responses” if they choose to participate at all. Further, APA states that the NTSB’s own rules forbid non-consensual recording of witness interviews. This could become a factor when the pilots appear under subpoena.

Perhaps the most worrying aspect of this standoff between the NTSB and the American Airlines pilots, is that it is happening at all. “Just Culture” means that as long as everyone is honest and there is no “ill intent”, all investigations should do is provide lessons that will improve the safety of future flights.

However, the fact that these pilots felt the need to adopt a more cautious attitude towards the NTSB, perhaps shows that people’s perception of this process isn’t what it should be. It’s also worth noting that the NTSB isn’t the only body that could take interest in the actions of these pilots. In the last few days, the US Congress has called for investigations into the circumstances of several recent incidents, including this one.

There may be some interesting factors in this incident, that could have distracted these crew members. They could include changes in airline standard operating procedures or the timing of the crew’s clearance to cross a runway. Let’s hope that this disagreement won’t stop the industry from learning any vital lessons in this and other incidents and accidents.

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