NTSB’s Investigation Moving Full Speed Ahead

The collision triggered an almost immediate response from the National Transportation Safety Board (NTSB), an independent federal agency charged with investigating significant marine accidents.[1] This article discusses the NTSB’s authority, investigative activities, and what clients may expect if contacted by the NTSB.[2]

In a press conference on May 19, the NTSB announced its investigation into the Mexican Navy tall ship collision would focus on “the crew and the operation of the crew, the vessel and the condition of the vessel, and finally, the environment, and that includes the weather, the wind, the current, the tide and the operating environment.” The NTSB expects to release a preliminary report in about 30 days, but emphasized that “[t]his is the start of a long process.”[3] The NTSB’s probe will indeed not only be a long process for the NTSB, it may also be for any entity from whom the NTSB will seek information.

The NTSB’s Authority

The heart of the NTSB’s authority is conducting investigations “to determine the facts, conditions, and circumstances relating to an accident … [,] to determine one or more probable causes of an accident, and to issue safety recommendations to prevent or mitigate the effects of a similar accident.” 49 CFR § 831.4(a). “NTSB investigations are fact-finding proceedings with no adverse parties.” 49 CFR § 831.4(c). The NTSB has no enforcement authority, only a mandate to issue safety recommendations to prevent or mitigate the effects of a similar accident. See 49 CFR § 831.4.

An investigation by the NTSB “has priority over any investigation by another department, agency, or instrumentality of the United States Government,” unless “circumstances reasonably indicate that the accident may have been caused by an intentional criminal act,” in which case the NTSB shall relinquish investigative priority to the Federal Bureau of Investigation. 11 U.S.C. § 1131(2). See also 49 CFR § 831.5. While the NTSB “will provide for appropriate participation by other Federal agencies in any NTSB investigation[,] [s]uch agencies may not participate in the NTSB’s probable cause determination.” Id. That said, the NTSB’s authority does not affect “the authority of another department, agency, or instrumentality of the Government to investigate an accident under applicable law or to obtain information directly from the parties involved in, and witnesses to, the accident.” Id.

The Investigation Ahead

NTSB initially monitors the situation and assesses the immediately available facts. 49 CFR § 831.4(a). In this case, it has “first right to access wreckage, information, and resources, and to interview witnesses,” and it “has exclusive authority to decide when and how the testing and examination of evidence will occur.” 49 CFR § 831.5(a)(3)-(4). The NTSB has already begun working to gain access to the ship so that its investigators can inspect the engine, interview crew members still on board, and recover any data recorders the vessel might have.[4]

Next steps include demands for records and written information from the ship, the crew, the tugboat operators, first responders, and other entities and individuals with information pertinent to its investigation. The NTSB will then interview the captain and crew of the ship, the harbor pilot, the tugboat operator, those who planned the ship’s travel, first responders who were called to the scene, and anyone else with information about the incident. The NTSB may also engage subject matter experts throughout this process to help investigators understand engineering and mechanical issues that may have been a proximate cause of the collision.

Consistent with its mandate to issue safety recommendations to prevent future accidents, or mitigate the effects of similar accidents, the NTSB’s investigation may also examine industry-wide safety issues. In the aftermath of the collapse of the 2024 Francis Scott Key Bridge in Baltimore, Maryland, the NTSB put bridge operators across the country on notice that they should assess the structural integrity of their bridges. The result could be similar here — the NTSB may reiterate its notice to bridge operators or issue warnings to, for example, all harbor pilots operating ships in New York waterways or all vessels with a certain engine type or design.

Although the NTSB has no enforcement authority, incidents like this one inevitably lead to litigation attempting to assign liability and collect damages. In addition to responding to the NTSB’s demands for information, many of the involved parties should consider conducting their own privileged internal investigation into what happened.

As with any major accident, there are questions a responsible company will want answered: How did its employees respond to the incident? Did they act consistent with their training? Was any agent of the company negligent in causing or responding to the accident? Is any loss, damage, or liability covered by an existing insurance policy? If the entity is under the jurisdiction of a regulatory body, did the entity’s actions comply with the regulatory requirements?

The benefits of such an investigation are twofold. First, an entity can better understand and attempt to manage and mitigate any risks. Second, the NTSB, which strives to complete an investigation within one year of the accident (but sometimes takes closer to 24 months), appreciates when parties have conducted their own internal investigations that can facilitate the NTSB’s fact-finding process. NTSB investigators may also find that they do not need to issue safety recommendations where an entity, as a result of its own internal investigation, has already taken all necessary and appropriate steps to prevent or mitigate against future incidents.

Next Steps

In each investigation, the NTSB tries to determine the probable cause(s) of the incident and share lessons learned that will hopefully prevent similar incidents from occurring in the future. At the conclusion of its investigation, the NTSB releases a report of the incident, makes its docket publicly available, and will disclose a copy of the record, information, or investigation to members of the public upon request at a reasonable cost. 49 U.S.C. § 1114(a)(1). Although the implications of a negative NTSB report are primarily reputational and are not admissible as evidence in subsequent litigation, adverse investigative findings may serve as a road map for litigants (private parties and/or government agencies) pursuing damages and, possibly, criminal charges.

For those reasons, it is often beneficial to involve counsel early in an investigation to coordinate a full and appropriate response while assessing and mitigating exposure. ArentFox Schiff is experienced in guiding its clients through investigations, including major investigations conducted by the NTSB.