In language that was uncharacteristically blunt and direct, National Transportation Safety Board (NTSB) chairman Robert Sumwalt accused the doors-off photo tour company NYONair, parent of FlyNYON, of turning “a perfectly good helicopter into a death trap” and characterizing it as “madness.”

Sumwalt’s remarks came as the NTSB held a public hearing on December 10 in Washington to determine the probable cause of the fatal March 11, 2018 crash of an Airbus AS350B2 into New York City’s East River that killed all five passengers aboard. The passengers drowned after the helicopter rolled inverted in the water when the emergency floats failed to fully inflate. They were unable to extricate themselves from supplemental harnesses they were wearing as a “safety measure” during a doors-off, “shoe selfie” photo flight. The harnesses were cross-attached to the rear cabin bulkhead or floor attach points via a tether and locking carabiner with a D-ring. The pilot, who was wearing only a standard seatbelt, extricated himself and survived. The flight was operated by Liberty Helicopters for NYONair. 

The NTSB determined the probable cause of the accident was “Liberty Helicopter’s use of an NYONair provided passenger harness tether system which caught and activated the floor-mounted engine fuel shutoff lever and resulted in the loss of engine power and subsequent ditching.” The NTSB listed contributing factors, including deficient safety management at Liberty and NYON; Liberty allowing NYON to influence operational control of the flights; and inadequate FAA oversight.

According to the Board, the severity of the accident was affected by “the rapid capsizing of the helicopter due to partial inflation of the emergency flotation system” and Liberty and NYON’s use of a supplemental “harness tether system that hindered passenger egress.” 

The helicopter’s engine failed during a “doors-off” photo tour flight conducted under 14 CFR 119.1(e)(4)(iii), which allows aerial photography flights to be operated under Part 91 as opposed to the more stringent Part 135 that typically covers air tourism flights. The exemption was designed to allow professional photography flights and other types of aerial work.

Loopholes in Regulations

During the hearing, NTSB members repeatedly blasted Liberty and NYON’s exploitation of what they saw as a glaring loophole in FAA regulations. Co-chairman Bruce Landsberg called it “a loophole one could fly a helicopter or a truck through.” He added, “What happened here was beyond the pale.”

Landsberg struggled to contain his incredulity. “I went to FlyNYON’s website. They said since inception in 2012 they have flown over 250,000 passengers and now offer flights in Miami [and] Los Angeles. That doesn’t sound like aerial work…and the FAA had difficulty understanding this?” 

As it turns out, NTSB staff investigators did discover that FAA inspectors had raised concerns about FlyNYON’s operations to their supervisors but were rebuffed. However, none of these inspectors or supervisors availed themselves to obtain a legal opinion from the FAA as to the legality of the operations.

“What they did not do, and we did during the investigation, is contact their legal department—which is a tool available to them—to ask what was this (operation) supposed to be under [Part 91 or Part 135],” said NTSB investigator David Lawrence. “Had they done that, they would have gotten the same legal interpretation we received that said that this [FlyNYON] is not aerial photography, it is an air tour.” Lawrence also added that the agreement Liberty had in place with NYONair was a charter agreement that specified Part 135. 

However, NYON instructed its employees never to use the words “tour or charter” and to be on the watch for overly inquisitive visitors and “anyone with a badge,” according to the NTSB. Sumwalt said both Liberty and NYON were more than “not vigilant, they went beyond the lack of vigilance. They exploited a regulatory loophole to the detriment of their customers’ safety.” 

Sumwalt continued, “Once you hang out a shingle and charge money in exchange for goods and services, there needs to be a higher standard of care. I think we need to take a hard line and say, ‘If you are going to charge people to go up for an air tour, it will be conducted under Part 135.’

“There is nothing like the experience of an air tour to see a location from a different perspective, but it is madness to allow the thrill of such an experience to be spiked with unnecessary risk to passengers, to crew, and to innocent bystanders,” he said. 

The FAA received additional Board criticism with regard to its STC approval of the Dart emergency floats on the helicopter, specifically with regard to the position of the float activation lever on the cyclic, the inordinate amount of pull force required to activate that lever (greater than 59 pounds), and the failure of the year 2000 crossfeed tube modification to prevent asymmetrical float inflation in the event one of the gas cylinders failed.  

But the board’s most scathing criticism was reserved for Liberty and NYON, which were broadly faulted for their respective safety cultures characterized as “deficient.” Safety shortcomings mentioned by the Board included: a lack of a safety management system (SMS) at both organizations; a "misleading" NYON passenger safety video that characterized the supplemental harnesses as quick-release and equipped with an easily used cutting tool; purging pilots from safety meetings; and disregarding pilot safety concerns.

A crisis communications firm hired by NYONair to field media inquiries failed to respond to AIN’s request for comment. Liberty executive Jerry Eisenberg said the company could not comment on the NTSB’s findings “at this time” due to ongoing accident litigation. An FAA spokesperson told AIN, “We are reviewing the NTSB’s recommendations and will respond as required within 90 days.”

Recommendations

Along with its probable cause finding, the NTSB issued 20 findings and 15 recommendations. 

The Board found that “Liberty Helicopter’s and NYONair’s decision to use locking carabiners and ineffective cutting tools for passengers to rapidly release from the harness tether system was inappropriate and unsafe.” It further said the FAA’s approval process for supplemental passenger restraint systems implemented after the crash is “inadequate” because “it doesn’t provide guidance to inspectors to evaluate any aircraft specific installations or the potential for entanglement that passengers may encounter during emergency egress.” Dart was faulted for not “specifying pull force limitations for the emergency flotation system’s activation handle."

NTSB recommendations included suspension of doors-off passenger flights until the FAA’s supplemental restraint approval process is improved; mandating SMSs for all air tour operators; closing the photo-flight loophole; modifying the fuel shutoff lever on the AS350 to protect it from “inadvertent” activation; and training employees to recognize signs of passenger impairment and to deny boarding as appropriate. The front-seat passenger, whose entangled tether triggered the fuel shutoff lever, was found to have a blood alcohol content level of 0.18—more than twice the legal limit. However, his intoxication was found not to be a factor in the accident by the NTSB. Sumwalt praised the airmanship of accident pilot Richard Vance.

“I do want to talk about the pilot performance. Within two seconds, he initiated descent. He went to shut off the fuel shut off lever. He slammed it back down to try to open the valve and then went back to try to relight the engine. He did activate the floats. He had a lot going on in that less than a minute. And I was frankly impressed that he got that much done under a high-stress situation.”

“The ditching was survivable,” Sumwalt said.