# Joint Appendix — United States v. SA Empresa De Viacao Aerea Rio Grandense > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0452%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 1984 - **Citation:** 467 U.S. 797 ## Text Office Supreme Court, U F I Nos. 82-1349 and 82-1350 .ee In the Supreme Court of the Anited OCTOBER TERM, 1983 UNITED STATES OF AMERICA, PETITIONE” v. S. A. EMPRESA DE VIACAO AEREA RIO GRANDENSE (VARIG AIRLINES) UNITED STATES OF AMERICA, PETITIONER v. EMMA ROSA MASCHER, ET AL. UNITED STATES OF AMERICA, PETITIONER v. UNITED SCOTTISH INSURANCE CO., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOINT APPENDIX PHILLIP D. Bostwick, Esg. Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W. Washington, D.C. 20036 (202) 822-1000 ROBERT R. SMILEY, III, Esa. Rex E. LEE Smiley, Olson & Gilman Solicitor General 1815 H Street, N.W., Suite 600 Department of Justice Washington, D.C. 20006 Washington, D.C. 20530 (202) 466-5100 (202) 633-2217 RICHARD F. Gerry, Esq. Counsel for Petitioners 110 Laurel Street San Diego, California 92101 (819) 238-1811 Counsel for Respondents a ae aD PETITIONS FOR WRITS OF CERTIORARI FILED FEBRUARY 10, 1983 CERTIORARI GRANTED MAY 16, 1983 TABLE OF CONTENTS * United States of America v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines); United States of America v. Emma Rosa Mascher, et al., Supreme Court No. 82-1349 Page 1. District court docket entries (Varig and ED avis belo tan 6osssceees ce ehenaaen’ 1 2. Varig’s First Amended Complaint for Money PE avetccnes ees ciuustewebssboueeuaer 16 8. Answer of Defendant, United States of Amer- ica, to Varig’s First Amended Complaint .... 23 4. Complaint of Emma Rosa Mascher, et al. ...... 27 5. Answer of Defendant, United States of Amer- ica, to Mascher Complaint .................. 39 6. First Amended Complaint of Emma Rosa Sse sevastiiaesdeced bicnnceavare cs 45 7. Report of French Board of Inquiry ............ 49 Ey a A UD BOUND b ccdcvccsccccscaccss 99 Pe RE BA IIE orev bdceccccvcsenaccvs 101 10. Civil Air Regulation 4b.381(d) (1953) .......... 107 11. NTSB Safety Recommendations A-73-67 thru Pubic sige ane on 545049 Moemashenenounebeuni 108 12. FAA Response to NTSB Safety Recommenda- tions A-73-67 through A-73-70 .............. 110 18. FAA Airworthiness Directive 74-08-09 ........ 113 14. FAA Notice of Proposed Rulemaking for Air- worthiness Directive 74-21-63............... 115 15. Pretrial (excerpts) Deposition of Rudolf DEED vnc cbdsoecasovecbobnokssdcdsaiens 118 *The opinions of the district court and the court of appeals are printed in the appendices to the petitions for writs of certiorari and have not been reproduced. Paragraph 17 of the district court's findings of fact and conclusions of law (82-1349 Pet. App. 10a) was inadvertently in- cluded. The district court struck that paragraph from the govern- ment’s proposed findings of fact and conclusions of law. (1) (11) Page 16. Pretrial (excerpts) Deposition of Richard Nel- GO cauine cobiosicisteceneveckeeevisbansdae se 128 17. Pretrial (excerpts) Deposition of Rocco Lippis.. 1384 18. Pretrial (excerpts) Deposition of Rolland es wkscakedpedsccsculivadtouaanes 142 19. Pretrial (excerpts) Deposition of Jack Bulmer .. 142 20. Pretrial (excerpts) Deposition of Harold Tanke. 143 21. Record of Visit to Rio de Janeiro, Brazil of INS tina sa. cchuce bowers satin Ores i44 22. Affidavit of Frederico Ritter ...... fee rr Pe 149 23. Checklist—“Interior Arrangements,” dated BN Ti ak aided hac dee kms ae camenas eran 154 24. FAA Type Certificate Number 4A26 .......... 156 25. Varig’s Motion to Strike the Affidavits of Cecile Hatfield and Melvin Craig Beard............ 157 United States of America v. United Scottish Insurance Co., et al., Supreme Court No. 82-1350 1. District court docket entries ................05: 161 2. Complaints and Answers in each of the five con- SED hig. ctnrccodcvesecnessumeuaas 171 3. Findings of fact and conclusions of law, dated ee ee 205 4. Judgment after trial, entered March 26,1976 ... 212 5. Transcript of hearing, June 10, 1980, pages 3-58. 214 6. Transcript of hearing, September 19, 1980, pages BEE Cs dhe viv daacaehs aca iveneten teal 250 7. Transcript of original trial: .................46. 275 a. pages 415-451 (Jan. 30, 1975)............ 275 b. pages 883-884 (Feb. 5, 1975) ............ 297 c. page 899 (Feb. 6, 1975) ................. 298 d. pages 908-909 (Feb. 6, 1975) ............ 298 e. pages 912-917 (Feb. 6, 1975) ............ 300 f. pages 1430-1432 (Mar. 13, 1975) ......... 304 g. pages 2460-2474 (Apr. 2, 1975) .......... 306 (III) Order allowing certiorari No. 82-1349 Order allowing certiorari No. 82-1350 “eee eee enenenne Relevant Docket Entries CV76-187-WPG S.A. Empresa De Viacao Aerea Rio Grandense vs USA Date 1/16/76 2/3/76 2-9-76 3-8-76 3-11-76 3-19-76 3-25-76 4-2-76 4-23-78 Mar.31 NR. nm jmn jmn mn jmr jmr lw mn mn nm Proceedings Fld Complt. Issd summs. Fld Req & ORD for serv of process by other than USM, naming Gary C. Kuist. Fld pltf Varig Airlines, note of chg of address of ens. Fld pltfs Varig Airlings note of tkg depos of Rudolph Kapustin on 2/11/76 at 9:30AM. Fld ORD (R for RJK) (WPG) dtd 2-4-76 transfng actn to the calendar of Judge Wil- liam P. Gray for all fur procdngs. Attnys notified. Fld deft’s ANSWER to complaint. LODGED deft’s proposed ord of transfer of action. Fld ORD(WPG) transfering action to USDC Western District of Washington. Mid cpys to prties & notfd prties. ce to elk civil. (ENT 3/19/76) Mld to USDC, W/D of Washington, ce Ord of Transf, cc docket and all original docs ex- cept Ord of Transf which is retained. Attny notified. Rec'd from USDC, W/D of Washington, copy of transmittal letter. Given case no. C76-232M. Rec’d from USDC, W/D of Washington, their file on Case #C76-232M. Fld each of the fol- lowing documents. Filed Varig’s notice of depositions of Prater Hogue, Hall Piper, The BOEING officer charged with the duty of obtaining a Type Certificate for BOEING 707 aircraft, The BOEING officer charged with duty of de- signing and obtaining certification of lavato- ries of BOEING 707 aircraft. Apr.13 Apr. 16 Apr.30 May 5 May 27 Jul 6 10 11 Jul 22 lla 1lb lle Jul 27 12 12a 2 Filed Joinder of United States in Boeing’s mo- tion for appointment of Master an’ Motion of United States to vacate notice of . eposition Ent. order continuing on stipulation Deft. Boeing’s motion to appoint Special Master to 4/30/76. Deft. Boeing & Weber’s motion to limit terminate or limit deposition of Rudolph Kapustin denied. Order to be signed. Ent. Order, granting Defendant’s Boeing’s mo- tion for appointment of Special Master. Or- der to be signed. Filed Affidavit of Mark A. Dombroff in re- sponse to: (1) Varig’s opposition to Boeing’s motion for appointment of a special master: and (2) Varig’s motion to apply the provi- sions of the manual for complex and multi- district litigation to these cases and for an order setting a first principal pretrial confer- ence, a schedule for the first waiver of dis- covery and establishing a document deposi- tory and statement of reasons in support. See C76-169M for filing of deposition of Rudolf Kapustin Filed letter approved by Court for service of Special Master at amount of $272.60 to May 31, 1976. Filed letter approved by Court for service of Special Master at amount of $942.50 for June 1, 1976 to June 30, 1976. Govt. motion to dismiss, noticeof hearing Aug. - 13, affidavitof Mark Dombroff and memoran- dum filed. Filed Stipulation rescheduling government’s motion to dismiss for 9/24/76 from 8/13/76 and Varig’s opposition papers to be filed no later than 9/20/76, at 4:30 P.M. Counsel notified. ’ Filed Renotice of Motion of U.S. of A. to 11/5/76 ” - Aug. 2 Aug. 2 Aug. 3 Sep. 10 Sep 10 Sep 20 Sep 23 Oct 4 Oct 4 Oct 8 Oct 15 Oct 19 13 14 15 3 Filed Responses to Varig’s modified Interrogs by Weber Aircraft Corp. First Set, see C76-169M for documents Filed Varig’s interrogs to deft. Boeing (Sec- ond Set) and answers thereto Filed Boeing’s responses to Varig’s fourth set of request for documents -see C 76-169 for documents Filed Motion of Weber Aircraft to Compel Varig Airlines to Produce Documents, and to Strike Objections; Affidavit of Joseph E. Gregorich and Memorandum of Points and Authorities in Support Thereof Filed Motion of Weber Aircraft to Compel Varig Airlines to Respond to Interrogato- ries, and to Strike Objections (Second Set); Affidavit of Joseph E. Gregorich and Memo- randum of Points and Authorities in Sup- port Thereof Filed Motion of Weber Aircraft to Compel Varig Aircraft to Compel Varig Airlines to Respond to Intorrogatories, and to Strike Objections (First Set) Affidavit of Joseph E. Gregorich and Memorandum of Points and Authorities in Support Thereof. Filed Varig’s Memorandum of Points nd Au- thorities in Opposition to Government’s Mo- tion to Dismiss Ent. order continuing def’s motion to dismiss to 9:30 a.m. 10/8/76 Mr. Dombroff to notify counsel and Clerk has notified Mr. Smith. Filed United States’ Memorandum in Reply to Points and Authorities Filed by Varig in Opposition to Government’s Motion to Dismiss Filed Varig’s Rebuttal to United States Mem- orandum in Reply to Points and Authorities filed by Varig in Opposition to Govern- ment’s Motion to Dismiss Def.’s motion to dismiss continued to 10/15/76 Motion to dismiss continued to 10/19/76 Def.’s motion to dismiss under advisement. Oct 21 Dec. 8 Dec. 27 1977 Jan. 6 Jan. 14 Jan. 31 Feb. 22 Mar. 9 Mar. 18 4 Filed Order (entered 10/22) denying Plaintiff's motion for a continuance of defendant’s Mo- tion for Summary Judgment. Copy to counsel. Filed and entered Order Denying Defendant’s Motion to Dismiss. Copy to counsel. Filed Varig’s Memorandum of Points and Au- thorities in Opposition to the United States’ Motion for a Protective Order, Filed United States of America’s Memoran- dum in Support of Motion to Vacate and to Establish a Consolidated Discovery Schedule Filed United States of America’s Memoran- dum in reply to Varig’s Opposition to the United States Motion for Protective Order Filed Varig’s Reply Memorandum in Opposi- tion to the Government’s Motion for a Pro- tective Order Filed Varig’s Motion to Vacate Order of Ref- erence and to Retransfer to the Centra! District of California Filed Varig’s Memorandum of Points and Au- thorities in Support of its Motion to Vacate Order of Reference and to Retransfer Case to Central District of California Filed Affidavit of Phillip D. Bostwick and Ap- pendix in Support of Varig’s Motion to Retransfer Filed Notice of Motion to Vacate Order of Reference and to Retransfer to the Central District of California for 3/4/77 Filed United States of America’s Affidavit in opposition to Varig’s Motion to Vacate Or- der of Reference and to Retransfer case to the Central District of California Filed Affadavit of Jonathan Howe, Regional Counsel, Northwest Region, Federal Avia- tion Administration Filed Reply Memorandum and appendix in Support of Varig’s Motion to Vacate Order of reference and to retransfer 1978 Jan. 20 1/23/78 nm 3/27/78 sam 8/11/78 rlb 8/24/78 aj 9-8-78 re 9/11/78 rlb 9-19-78 ke 9-20-78 ke 10/12/78 lb 5 Plaintiff's motions to vacate order of reference and retransfer under advisement. Filed Order retransferring case to the Central District of California and vacating orders of 5/5/76 and 5/19/76 referring case to George Bovingdon as Special Master. Copy to counsel. Fld ce Ord of Transf, cc docket, & ltr of transf. Attys notified. Md re-opening 33. Fld deft Weber resp to plitfs req for prod of documents 2nd set. 34. Fld Varig’s nte of mot, rtnble 9/25/78 at 10am, for consolidation. 35. Fld Varig’s memo of P/As In suppt of mot to consolidate. 36. Fld USA respnse to Varig’s mtn for consoldiation. 37. Fld pltfs note of mtn & mtn for order compelling discovery: retnbl 9-25-78 38. Fld pltf's Memo of P&A in support of mtn to compel discovery. 39. Fld stip & ORD (1H for WPG) re dsevry. 40. Fld pltf Variz Airlines’ memo & affid in oppstn to United States’ motn for consolidation. 41. Fld pltf Varig Airlines’ note of depos of Donald Swett on 4-17-78, John V__ on 4-19-78, Robert Rotberg on 4-20-78, Victor Bassotti on 4-24-78, J. Turr on 4-26-78, & Pat Vaughn on 4-27-78. 42. Fld pltf Varig Airlines’ certif of ens! in compliance w/Loc Rule 3(L). 43. Fld pltf Varig’s memo of P&A in supp of mot to strike Kidde’s 4th affirmatv defense. 44. Fld pltf Varig’s note of mot & mot to strike 4th affirmatv defense retnbl 10/30/78 10AM. ; 45. Fld plitf Varig’s note of mot & mot to strike deft USA’s lst & 2nd defenses retnbl 10/30/78 10AM. 46. Fld pitf Varig’s memo of P&A in supp of mot to strike USA's defenses. 10-23-78 10-23-78 10-25-78 10-26-78 11/14/78 12/8/78 12/13/78 12/15/78 6/15/79 ke ke ke ke lb Pg Pg Pg 6 47. Fld pltf Varig’s note of mot & mot to strike kidde’s 4th defense or in the for an ord revising the s/j ord of 1/14/77 w/ affid in supp. 48. Fld pltf VARIG Airlines’ note of motn & motn for cont of Kidde’s motn for & affid in support retble 10-30-78. 49. Fld pltf VARIG Airlines’ affid of Phillip D. Bostwick in support of motn to strike deft Kidde’s 4th affirmative defense. 50. Fld plt VARIG Airlines’ memo of P/A’s in support of VARIG’s motn for cont Kidde’s motn for S/J. 51 Fld deft’s memo of P/A’s in oppstn to Varig’s Motn to strike affirmative def & entr-motn of U.S. to dism. 52. Fld deft USA’s supple brief & response to pltf passengers’ brief in support Varig’s motn to strike affirmative defenses of the U.S. 53. Fld deft Weber Aircraft’s memo of P/A’s in response to Varig’s motn for contc Kidde’s motn for S/J. 54. Fld deft USA’s motn in oppstn to Varig’s ex parte reqst to cont retnble 10-30-78. 55. Fld deft’s note of entrmot & cntrmot to dism retnb] 12/11/75 2 PM. 56. Fld deft’s aff of Cecile Hatfield. 57. Fld defts reply to Varig’s response to US mot to dism. 58. MIN ORD: Hrg on OTC to set aside S/J: Crt ORD discharged—OSC & reaffirm the S/J. deft Boeing shall submt memo re cert. for interlocutory apeal by 1/14/78. Re Mot to dism by deft GNRTD pltfs mot to strk gvmts affirmative defense is DEN. jmw 59. Fld pltf Varig’s note of tkg DEPOs of: Chief of Aircraft Engineering Div FAA West Region, 6-25-79/9:30 am; FAA employ- ee responsible for review’g docs re Boeing 707, 6-26-79/9:30 am; unknown indiv (see 6-5-79 7/6/79 7-15-79 7-18-79 7-26-79 7-27-79 8-12-79 8-20-79 8-12-79 8-10-79 jmw jmw gll jmw gil gil gil gil lf if 7 note), 6-28-79 at 9:30 am; unkn indiv(see note), 7-9-79/9:30 am; unkn indiv (see notc) 7-10-79/9:30am; unkn indiv(see notc) 7-12-79/9:30am; unkn indiv(see notc) 7-13-79/9:30am. 60. Fld plitf Varig’s renote of motn for ORD empelg dise fr U.S.A. (orig fld w/Crt 9-8-78) for retnbl 6-11-79/10am. 61. Fld pitf Varig’s A/Note of DEPO of Custod Boeing rerds, 6-22-79/9:30am 62. Fld pitf's cert of ens! in empliance w/loc rul 3(L). 63. Fld defi, Weber Aircraft Corp, reply memo fr motn fr S/J; affid of Joseph E. Gregorich. 64. MIN ORD: PROCDGS: ORD tha deft We- ber’s mot S/J stand sbmt’d; ORD GRNTG pltf Varig’s mot to compel as to req 17 & 19. LODGED prop ord re pitf's motn to compel discov. 65. Fld ORD (WPG) granting Varig’s motn to compel prod of docs; USA to prod docs by 7-18-79; USA to provide list of names & ad- dresses re note of depos: thereafter Varig sh be prmtd to depose 7 prsns. 66. Fld stip & ORD (WPG) cont motn fr S/J to 6 -18-79, 2pm; fur stip that motn of Varig to compel discov agnst USA cont to 6-18-79 2 p.m, 67. Fld pltfs’ subst of attys & ORD (WPG) subst Joseph T. Cook of Speiser, Krause & Madole. 68. Fld plts note of tkg depos of Richard Nel- son on 8-21-79 & Rocco Lippis on 8-28-79. 69. Fld plt’s note of motn & motn for ord settng discov cut-off date, final PTC & trial retnbl 8-27-79, 2PM 70. Fld pitf's memo of P&A in supp of motn for ord setting discov cut-off date, final PTC & trial 71. Fld pitf's note of motn & motn for sanctns for gov’ts failure to comply w/dis ord 8-22-79 8-27-79 9-14-79 9-14-79 11-6-79 11-13-79 11-23-79 11-29-79 12/17/79 12/17/79 2-5-80 lf If lp If 8 72. Fld plit’s memo of P&A in supp of motn for sanctns for gov’ts failure to comp w/discov ord 73. Fld pltf's memo of P&A in supp of motn for lv to tk depos of Boeing Employees 74, Fld pitf's note of motn & motn for lv to tkg depos of Boeing Employees 75. Fld pltf supp] memo on the 9th circuit’s sas opinion 76. Fld pitf's aff of Phillip D. Bostwick in oppos to Boeing’s motn to quash or modify Varig’s subp & in supp of Varig’s motn to lv to tk depos of Boeing 77. MIN ORD: motn for S/J fr Kidde is denied; depos of USA to be tkn; motn for sanctns tkn off cal 78. Fld deft’s gov’t memo in oppos to Varig’s motn for ert-approvd discov sch & discov cut-off date 79. Fid pltfs oppos to discov sch & discov cut-off 80. Fld pltf's renote of depos of Richard Nelson on 11-13-79 81. Fld pitf's renote of depos LODGED pltfs prop ord re depos 82. Fld ORD re depostns; depos of Richard Nelson & Rocco Lippis shall not go for ensl for Mascher shall mk himself availbl in De- cember for 7 depos: govt mk availbl list of 7 wits; depos complete by 12-31-79 83. Fld plt’s Varig’s amd renote of depos of Richard Nelson on 12-4-79, Rocco Lippis on 12-10-79, Jack Bulmer on 12-11-79, Harold Tanke on 12-12-79 & William Van Brockdorff on 12-13-79. Issd 3 Fld DEPOSITION of John F. Turner takn on 12/17/79, Vol. I. Fld DEPOSITION of Patrick Vaughn takn on 4/27/79, Vol. I. 84 Fld pltfs renote of depos of Richard Nelson on 2-8-80 2-8-80 5-15-80 5-20-80 5-20-80 5-23-80 6-26-80 7-2-80 7-7-80 7-10-80 12-11-80 11-11-80 sb kt kt sb 9 85 Fld pltf's amd renote of depos of Richard Nelson on 2-20-80 Fld DEPOSITION of Harold Frederick Tanke tkn on 12-12-79 Fld DEPOSITION of Jack K. Bulmer tkn on 12-11-79, Vol. I Fld DEPOSITION of Jack K. Bulmer tkn on 12-12-79, Vol. II LODGED pltfs prop ord 86. Fld pltf's renot of motn for sanctns for fail- ure of the US to comply w/ert’s discov ord etc RTNBLE 7-7-80 10AM 87 Fld plitfs renote of depos of Wes Slifer on 7-9-80; an employee of the boeing on 7-10-80 88 Fld deft’s memo in oppo to pitf Varig’s motn for sanctns & for lv to file a lst amended complt 89. Fld plitfs renot of depo of Wes Slifer on 7-9-80 & Raleigh Curtis on 7-10-80 90. Fld pitf's reply memo in supprt of its mot & for lv to file a lst A/C 91 MIN ORD: ert ORDS depos of Mr. Curtis to be tkn, pltfs mtn to amd GRANTD; govt mtn to dism rtnbl 11-24-80, 10AM; govt may file suppl papers, pitf respons due 11-7-80, govt reply due 11-17-80 92. Fid pltf's FIRST AMENDED COMPLAINT LODGED prop ord 93 Fld ORD that Varig’s mtn for sanctns is denied; Varig’s mtn for lv to file lst A/C grantd; mtn for lv to tk the depos of Mr. Raleigh Curtis GRANTD: US mtn for S/J due 9-30-80; oppos due 11-7-80 & reply brief due 11-17-80; rtnbl 11-24-80 2PM Fld DEPOSITION of Rocco Louis Lippis tkn on 12-11-79 Fld DEPOSITION of Rocca Louis Lippis tkn on 12-10-79 11-20-80 11-20-80 12/1/80 12-12-80 12-11-80 12-2-80 12-29-80 12-6-80 12-8-80 12-2-80 If If rlb rlb md md md md md md 10 94 Fld pltfs note of tkg depos of Wes Slifer on 9-3-80; Raleigh Curtis on 9-4-80, The FAA Official on 9-15-80 & Craig Beard on 9-16-80 95Fld defts USA ANSWER TO FIRST AMENDED COMPLAINT 96. Fld Varig’s amnd ntc of tkng depos of various deponents on various dts. 97. Fld stip & ORD that US file mot for S/J on or bf 10/31/80; opp on or bf 11/30/80 reply on or bf 12/8/80; Hrg on mot 12/15/80, 2 pm. 98. Fla pltf Varig’s amded note of tkng depos of M. Craig Beard, FAA on 10-21-80 and Wes Slifer, FAA aero. engr on 10-22-80 99. Fld deft note of mot, retnbl 12-15-80, 2:00 pm. 100. Fld def. material facts as to which there is no gen iss LODGED deft prop findings of fact & concls of law LODGED deft prop ord for entry of S/J in fa- vor of deft & against pltfs Varig & Mascher, et al. 101. Fld pitf Varig Airlines note of fig depos of Rocco Lippis, tkn 12-10 & 11-79; Jack Bulmer, tkn 12-11 &12-79; & Harold Tanke, tkn 12-12-79 Fld DEPOSITION of Rolland C. Curtiss tkn 10-10-80, 102. Fld pltfs’ Stip & ORD entg deft United States’ mot for S/J & pltf's mot for lve to amd cmplt to 1-26-81, 2:00 pm. Resp by Varig & Mascher to U.S. mot for S/J due on or bef 12-17-80 & reply by deft due on or bef 1-7-81 LODGED pltfs’ prop ord 103. Fld Varig’s memo of P&A in oppo to the deft US's mot for S/J. 104. Fld Varig’s appendix in oppo to US’s mot for S/J. (exhs) 105. Fld Varig’s stmt of gen iss of material fact. 12-14-80 1-6-81 1-20-81 1-6-81 1-26-81 2-4-81 3-6-81 3/29/81 5-6-81 7/24/81 md md md md md md md sb am 1] 106. Fld pitf note of fig depo of Rolland C. Curtis on 11-26-80. 107. Fld deft’s reply memo to pltf Varig’s memo in oppo to U.S. mot for S/J. 108. Fld pitf Varig Airlines mot to strike affs of Cecile Hatfield & Melvin Craig Beard. 109. Fld pitf Varig’s memo of P&A in sppt of mot to strike affs 110. Fld pitf Varig’s notc of mot to strike affs, rtnbl 2-17-81, 10 am 111. Fld pitf Varig’s memo of P&A in rebuttal to US mot for S/J. Fld DEPOSITION of Weston B. Slifer tkn 10-22-80 Fld DEPOSITION of Weston B. Slifer tkn 10-23-80. 112. MIN ORD: Crt hrs oral arg & grts deft’s mot for S/J. Pitf may fi objs to s___ prop fndgs at which ti ert will fi jdgmt & fndgs. 113. Fld pitf Varig Airlines note of flg depo of Melvin Craig Brd, tkn 10-21-80 & Weston B. Slifer, tkn 10-22-23, 1980 114. Fld Fndgs of Fact & Concls of Law (WPG) tht S/J will be grtd in fav of deft United States. (ENT 3-9-81) Mid cpys & notcs to prtys. 115. Fld ORD (WPG) tht jdgmt be ent in fav of deft United States & agnst pltfs Varig and Mascher, et al. (78-0914-WPG) (ENT 3-9-81) Mid cpys & notes to prtys. 116.Fld plft NOTC OF APPEAL to the 9th Cir. C/A fr ORD ent on 3/9/81; $70.00 Clk’s fee & docket fee paid. 117. Fld pitf's designation Rpt trans Fld rptr’s transcrs. of proceedings held on 12/15/78, 6/18/79, 8/27/79, 7/7/80, 1/26/81. 1/9/78 1/13/78 4/18/78 4/28/78 5/22/78 5/24/78 5-15-78 6-21-78 9/25/78 10-20-78 10/23/78 10/25/78 10/26/78 12 EMMA ROSA MASCHER, ET. AL sam rlb rlb rlb rib rlb 1. Fld complt. Issd summs. 2. Fld app & ORD that Charles F. Krause be allowed to apear as non resident atty & naming Ted Orliss as local ensl. 3. Fld app & ORD that Donald W. Madole be allowed to appear as non resident atty & naming Ted Orliss as local ens]. 4. Fld app & ORD that Robert R. Smiley III be allowed to appear as non resident atty & naming Ted Orliss as loca! cnsl. 5. Fld summs rtnd srvd 3/17/78. 6. Fid ORD (R) (WPG) dtd 4/28/78, transfg the actn to the cal of Judge Gray for all fur predgs. Attys notified. 7. Fld deft’s ANSWER to COMPLAINT. 8. Fld USA’s Nte of Mtn & Mtn rtble 9/25/78, 10am for consolidtn. 9. Fid pltfs stmt in supp of mot by USA to consolidate 10. Fld plitfs note of tk depos of various depo- nents, various dates 11. MIN ORD: ORD mot plitf to compl dsevry go off cal; Hrg mot pif for lv to amnd & con- sol & Ord Grtng mot to amnd cmp & mot to consolidate as to CV75-2325 & 6-187 a to hrg of legal mots only 12. Fld pitf's memo of P&A 13. Fld pitf's memo of P&A 14. Fld plitf aff of Robert R. Smiley III 15. Fld plitf stmt of the case 16. Fld US’s memo of P/As in opp to Varig’s mot to strk affrm defenses & counter mot to dsm. 17. Fld US’ suppl brief & ‘rsp to pitf Passen- gers’ brief in suppt of Varig’s mot to strk affrm defense of US. 18. Fld rsp of pitfs Mascher et al’s to opp of deft US to Varig mot to dsm & centr mot of US to dsm. 1/14/78 1/20/78 2/8/78 2/15/78 7/20/79 7/10/79 9-14-79 7-14-80 8/21/80 rib rlb rib rlb rib rlb yd dg sb kt Tz 13 19. USA mot In opp to Varig’s ex parte rqst to cont. 20. Fld USA’sntc of countermot & countermot to dsm. 21. Fld plfs’ supp! brief in opp to Mot by deft for S/J. 22. Fld affd Hatfield & memo in opp to Varig’s mot for ord compelling dsevry. 23. MI N ORD: OSC to set aside S/J: ORD OSC dischrged & S/J reaffirmed; deft Boeing to sub memo re cert for interloc appeal by 1/14/79: defts mot to dsm s Denied & plifs mot to strk is Denied, fing Of S/J after dsevry will be allowed. 24. Fld sub & ORD sub Joseph T. Cook in place & stead of Theodore Orliss. 25. Fld plfs’ cross nte of tkng depos of Richard Nelson on 8/21/79 & Rocco Lippis on 8/28/79. 26. Fid pltfs opp to discov schedule & discov cut-off Fld DEPOSITION of Richard W. Nelson on 8-22-79 Fld Contd DEPOSITION of Richard W. Nel- son of 8-21-79 Fld DEPOSITION of Richard W. Nelson tkn on 2-26-80 Fld pltfs’ memo of law in spprt of mot by pltf Varig to file an A/C & for sanctions against deft U.S. Fld pltfs’ stmt in spprt of mot by pltf Varig for sanctions for lv to file an A/C & for 1v for discovery from the Boeing Co. Fid pitfs’ aff of Joseph T. Cook & attached exhs Fld pltfs Mascher et al’s note of depos of Wes Slifer on 9/3/80; of Raleigh Curtis on 9/4/80; FAA Official in charge of or responsib! fr issuing Airworthiness Directives on the 707 aircraft & othrs during the year preceding the Varig crash or his successor on 9/15/80; of M. Craig Beard on 9/16/80 10/21/80 10-31-80 11/6/80 11/20/80 12/3/80 12/17/80 12/19/80 1/7/81 1/14/81 1/22/81 2/4/81 2-6-81 sb Pz kt rlb rlb rlb rlb rib rlb rlb rlb lp md 14 Fld DEPOSITION of Richard W. Nelson tkn on 2-20-80 Fid DEPOSITION of Richard W. Nelson tkn on 12-4-79 Fid DEPOSITION of Richard W. Nelsun tkn on 12-5-79 Fid AUSA, U.S. memo in opp to pltfs Mascher, et al mot to amd complt Fid pltfs’ nte of mot, rtnbl 11-24-80, 10am Fld pitfs’ mot to A/C LODGED plitf's prop A/C Fld response of plfs’ to memo of US in opp to mot to amnd cmplt. Fid stip & ORD ecntg mot to amnd complt to 12/15/80, 2pm. Fld stip for cont of USA’s mot for S/J & for plf Maschers’ mot for lv to amnd & ORD there- on cntg mots to 1/26/81, 2pm. Fld plfs’ memo of law. affd Cook. 39. Fld US’ nte of mot, rtnble 1/26/81, 2pm to strike. 40. Fld US’ memo in suppt its’ mot to strike. 41. Fld US’ reply memo to plfs’ opp to US’ mot for S/J. 42. Fld US’s mot to strike portions of affd of Cook III. Fld DEPOSITIONS of Melvin Graig Beard, tkn 10/21/80. Fld DEPOSITION of Weston B. Slifer, tkn 10/22/80 Fld DEPOSITION of Weston B. Slifer, tkn 10/23/80 43. Fld pitf note of filing the takng depositn of Melvin Craig Beard takng on 10/21/80. 44. Fld Findings of Fact & concls of law (WPG) tht S/J will be ent in fav of deft United States of America. (ENT 3-9-81) Mid cpys & notes to prtys. 45. Fld ORD (WPG) for entry of S/J in fav of deft, United States of America and agnst 15 pltfs Varig and Mascher, et al. (ENT 3-9-81) Mild cpys & notes to prtys. 4/23/81 Ip 46. MIN ORD: (Nune Pro Tunc—1/26/81). ORD that pltfs’ mot to amend the compInt is Granted. 5-8-81 lw 47. Fid pltfs’ NOTC OF APPEAL to 9th Cir frm Ord ent 3-9-81 16 PHILLIP D. BOSTWICK, ESQUIRE SHAW, PITTMAN, POTTS & TROWBRIDGE 18 M Strect, N.W. Washington, D.C. 20036 (202) 311-4100 and DANIEL N. BELIN, ESQUIRE McKENNA & FITTING 3435 Wilshire Boulevard Los Angeles, California 90010 Attorneys for Plaintiff VARIG Airlines UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Civil Action No. CV 76-0187-WPG S.A. EMPRESA DE VIACAO AEREA RIO GRANDENSE (VARIG AIRLINES), PLAINTIFF, Vv. THE UNITED STATES OF AMERICA, DEFENDANT FIRST AMENDED COMPLAINT FOR MONEY DAMAGES COUNT I 1. Plaintiff, S.A. EMPRESA DE \!ACAO AEREA RIO GRANDENS (VARIG AIRLINES) (hereinafter “VA- RIG”) is a corporation incorporated under the laws of the Republic of the United States of Brazil, having its principal place of business in Rio de Janerio, Brazil. As Brazil’s in- ternational “flag” airline, VARIG flies its passenger- carrying aircraft into and out of the International Airport at Los Angeles, California, where it maintains offices and does business. 2. Plaintiff's claim against defendant UNITED STATES OF AMERICA (hereinafter “UNITED STATES”) arises 17 under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 (b), 2671 et seq., as hereinafter more fully appears. 3. At all times mentioned herein the United States Fed- eral Aviation Administration or its predecessor the Civil Aeronautics Authority (hereinafter collectively referred to as the FAA”) was an agency of defendant UNITED STATES charged by law with the duty of promoting safety of flight of civil aircraft in air commerce by prescribing such minimum standards governing the design and performance of aircraft as may be required in the interests of safety. In furtherance of that duty the FAA was at all times men- tioned herein empowered by law to issue type certificates for passenger-carrying aircraft such as the BOEING Model 707 jet transport (hereinafter “BOEING Model 707 type aircraft”) and upon application for such a certificate by air- craft manufacturers such as THE BOEING COMPANY (hereinafter “BOEING”) the FAA was charged by law with the duty of reviewing the applicant’s designs, drawings, tests, analyses, and aircraft and its component parts for the purpose of ascertaining whether the applicant’s aircraft complied with the applicable Civil Air Regulations and/or Federal Aviation Regulations (hereinafter collectively re- fered to as “FARs’”) and other star lards governing the de- sign and performance of aircraft prescribed by the FAA; and with the further duty of making, or requiring the appli- cant to make, such tests during manufacture and upon com- pletion of the aircraft as the FAA deemed reasonably nec- essary in the interests of safety, including flight tests and tests of any part of such aircraft. 4. At all times herein mentioned the FAA acted by and through its officers, agents and employees, who were at all times mentioned herein acting under color of their office, within the scope and course of their employment, and on behalf of a federal agency in an official capacity as employ- ees of defendant UNITED STATES. 5. Prior to July 11, 1973, BOEING and WALTER KIDDE & COMPANY, INC. (hereinafter “KIDDE”) de- signed, tested, manufactured and sold a BOEING 707-320-C passenger-carrying transport jet aircraft, serial number 19841; and prior to said date, plaintiff VARIG pur- 18 chased said aircraft from Seaboard World Airlines, Inc. and operated it as Registration No, PP-VJZ (hereinafter said aircraft is referred to as “PP-VJZ”"), 6. Prior to July 11, 1973, BOEING made application to the FAA's Western Region in Los Angeles, California, for a type certificate for the BOEING Model 707 type aircraft, which certificate was issued by the FAA’s Western Region prior to said date. 7. Prior to July 11, 1973, in California and elsewhere in the United States, the defendant UNITED STATES, through its agency the FAA, negligently and carelessly is- sued a type certificate for the BOEING Model 707 type air- craft, which aircraft the FAA knew or should have known did not comply with the FARs and other minimum stand- ards governing the design and performance of passenger- carrying aircraft, and which aircraft the FAA knew or should have known had defects and dangers in its design and manufacture; negligently and carelessly failed to re- view and inspect BOEING’s and KIDDE’s designs, draw- ings, tests, analyses, and aircraft and its components for the purpose of ascertaining whether the Model 707 type ai» craft complied with the applicable FARs and aforemen- tioned minimum standards governing the design and per- formance of passenger-carrying aircraft; negligently and carelessly failed to make, or failed to require BOEING and KIDDE to make, such tests during the manufacture and upon completion of the BOEING Model 707 type aircraft, including PP-VJZ, as were necessary in the interests of safety; negligently and carelessly failed to require BOEING and KIDDE to modify or alter the design and manufacture of the BOEING Model 707 type aircraft, in- cluding PP-VJZ, prior to July 11, 1973, when it knew or reasonably should have known that said aircraft was defec- tive, dangerous and not in compliance with the FARs and aforementioned minimum standards, governing the design and performance of passenger-carrying aircraft; and negli- gently and carelessly failed to notify and/or warn operators and users of BOEING Model 707 type aircraft, including VARIG, prior to July 11, 1978, through the issuance of 19 Airworthiness Directives (“hereinafter “ADs”), or other- wise of the defects and dangers in said aircraft, including PP-VJZ, of which defects and dangers the FAA knew or should have known. 8. As a proximate result of the negligence of the defend- ant UNITED STATES as alleged, on July 11, 1973, PP- VJZ crash-landed near Paris, France following an in-flight fire in the aircraft which became uncontrollable. 9. As a proximate result of this negligence PP-VJZ was totally destroyed, all to the plaintiff's damage in the sum of SIX MILLION DOLLARS ($6,000,000.00). WHEREOF, VARIG prays judgment as hereinafter set forth. COUNT II 10. VARIG repeats and realleges each and every allega- tion contained in paragraphs 1, 2, 4, 5 and 6 of Count I of the First Amended Complaint, as if set forth in full herein, 11. At all times herein mentioned the UNITED STATES undertook to certify civil aircraft in air commerce, including the BOEING Model 707 type aircraft, as airworthy and in compliance with the applicable FARs and such minimum standards governing the design, manufacture and perform- ance of aircraft as were required in the interests of safety. In furtherance of that undertaking the UNITED STATES, through its agency the FAA and its employees and desig- nated representatives, issued Type Certificates and Cer- tificates of Airworthiness to aircraft designers and manufacturers including BOEING, for civil aircraft in air commerce, including the BOEING Model 707 type aircraft and PP-VJZ, upon application for such certificates by man- ufacturers, including BOEING, Following such application the FAA, its employees and designated representatives, undertook to review and inspect the applicant’s designs, drawings, tests, analyses and aircraft, including its compo- nent parts, for compliance with applicable FARs and the aforesaid minimum standards. In addition, the FAA, its employees and designated representatives undertook to re- quire the applicants, including BOEING, to make such tests, including flight tests, of passenger-carrying aircraft, 20 including the BOEING 707 type aircraft, as were required in the interests of safety and to show compliance with the applicable FARs and the aforesaid minimum standards. The FAA further undertook to review the in-service oper- ating and safety experience of aircraft which had been is- sued the aforesaid certificates, including the BOEING Mode! 707 type aircraft, after their delivery to operators, including VARIG, for the purpose of discovering said dan- gers and defects; to determine the continuing safety and airworthiness of such aircraft; and to warn all operators of such aircraft of all such dangers and defects and of the means or methods of correcting or minimizing them. In fur- therance of that undertaking the FAA issued ADs and other communications to operators of such aircraft during the operating life of the aircraft. 12. Prior to July 11, 1973, operators and users of BOEING Model 707 type aircraft, including VARIG, rea- sonably relied on the FAA’s various undertakings de- scribed above, including but not limited to the issuance of type certificates, certificates of airworthiness and ADs for the BOEING Model 707 type aircraft, including PP-VJZ, and the FAA was aware of such reliance. 13. Prior to July 11, 1973, in California and elsewhere in the UNITED STATES, the defendant UNITED STATES, through its agency the FAA, negligently and carelessly is- sued a type certificate for the BOEING Model 707 type air- craft, which aircraft the FAA knew or should have known did not comply with the applicable FARs and other mini- mum standards governing the design and performance of passenger-carrying aircraft, and which aircraft the FAA knew or should have known had defects and dangers in its design and manufacture; negligently and carelessly failed to review and inspect BOEING’s and KIDDE’s designs, draw- ings, tests, analyses, and aircraft and its components for the purpose of ascertaining whether the BOEING Model 707 type aircraft complied with the applicable FARs and the aforementioned minimum standards governing the de- sign and performance of passenger-carrying aircraft; negli- gently and carelessly failed to make, or failed to require BOEING and KIDDE to make, such tests during the man- 21 ufacture and upon completion of the BOEING Model 707 type aircraft, including PP-VJZ, as were necessary in the interests of safety; negligently and carelessly failed to re- quire BOEING and KIDDE to modify or alter the design and manufacture of the BOEING Model 707 type aircraft, incl ding PP-VJZ, prior to July 11, 1973, when it knew or reasonably should have known that said aircraft was defec- tive, dangerous and not in compliance with the applicable FARs and aforementioned minimum standards, governing the design and performance of passenger-carrying aircraft; and negligently and carelessly failed to notify and/or warn operators and users of BOEING Model 707 type aircraft, including VARIG, prior to July 11, 1973, through the issu- ance of ADs or otherwise of the defects and dangers in said aircraft, including PP-VJZ, of which defects and dangers the FAA knew or should have known. 14. As a proximate result of the negligence of the defend- ant UNITED STATES as alleged, the risk of harm to users and operators of BOEING Model 707 type aircraft, includ- ing VARIG, was increased. 15. As a proximate result of the negligence of the defend- ant UNITED STATES as alleged, on July 11, 1973, PP- VJZ crash-landed near Paris, France, following an in-flight fire in the aircraft which became uncontrollable. 16. As a proximate result of defendant UNITED STATES’ negligence as alleged, PP-VJZ was totally de- stroyed, all to plaintiff's damage in the sum of SIX MIL- LION DOLLARS ($6,000,000.00). WHEREOF, VARIG demands judgment against the UNITED STATES in the sum of SIX MILLION DOL- LARS ($6,000,000.00), for interest, for the costs of this ac- tion, and for all other proper relief. 22 Dated: SHAW, PITTMAN, Potts & TROWBRIDGE 1800 M Street, N.W. Washington, D.C. 20036 Telephone: (202) 331-4100 TOF ccm's PHILLIP D. BOSTWICK J. THOMAS LENHART PHILIP J. HARVEY AND MCKENNA & FITTING 3435 Wilshire Boulevard Los Angeles, California 90010 Telephone: (212) 384-3600 By: ee DANIEL N. BELIN G. HOWDEN FRASER Attorneys for Plaintiff VARIG AIRLINES ANDREA SHERIDAN ORDIN United States Attorney 312 North Spring Street Los Angeles, CA 90012 GARY W. ALLEN, EsqQ. Assistant Director Torts Branch, Civil Division CECILE HATFIELD, Esq. Trials Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 14271 Washington, D.C. 20044 Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Civil Action No. CV 76-0187-WPG S. A. EMPRESA DE VIACAO AEREA RIO GRANDENSE (VARIG AIRLINES), PLAINTIFF, Vv. THE UNITED STATES OF AMERICA, DEFENDANT ANSWER OF DEFENDANT, UNITED STATES OF AMERICA TO FIRST AMENDED COMPLAINT FOR MONEY DAMAGES Defendant, United States of America, by its attorneys, ANDREA SHERIDAN ORDIN, United States Attorney for the Central District of California, and CECILE HATFIELD, Trial Attorney, United States Department of Justice, Washington, D.C., in answer to the Complaint for Money Damages as filed herein states as follows: COUNT I 1. The United States of America is without sufficient knowledge and information to form an opinion as to the 24 truth of the allegations contained in Paragraph 1 of the Complaint, but for the purposes of this Answer, they are denied. 2. The allegations contained in Paragraph 2 of the Com- plaint present questions of law which are respectfully re- ferred to this Honorable Court for determination. 3. The allegations contained in Paragraph 3 of the Com- plaint present questions of law which are respectfully re- ferred to this Honorable Court for determination. 4, The United States of America is without sufficient knowledge and information to form an opinion as to the truth of the allegations contained in Paragraph 4 of the Complaint, but for the purpose of this Answer, they are denied. 5. The United States of America is without sufficient knowledge and information to form an opinion as to the truth of the allegations contained in Paragraph 5 of the Complaint, but for the purpose of this Answer, they are denied. 6. The United States of America admits the allegations contained in Paragraph 6 of the Complaint. 7. The United States of America denies each and every allegation contained in Paragraph 7 of the Complaint. 8. The United States of America denies each and every allegation contained in Paragraph 8 of the Complaint. 9. The United States of America denies each and every allegation contained in Paragraph 9 of the Complaint. COUNT II 10. The United States of America repeats and reaffirms each and every answer to Paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of Count I of the First Amended Complaint, as if set forth in full herein. 11. The United States of America denies each and every allegation contained in Paragraph 11 of the Complaint. 12. The United States of America denies each and every allegation contained in Paragraph 12 of the Complaint. 13. The United States of America denies each and every allegation contained in Paragraph 13 of the Complaint. 25 14. The United States of America denies each and every allegation contained in Paragraph 14 of the Complaint. 15. The United States of America denies each and every allegation contained in Paragraph 15 of the Complaint. 16. The United States of America denies each and every allegation contained in Paragraph 16 of the Complaint. AFFIRMATIVE DEFENSES FIRST DEFENSE 17. The Complaint fails to state a cause of action. SECOND DEFENSE 18. This Honorable Court lacks jurisdiction pursuant to the provisions of 28 U.S.C. Section 2680(a), (h) and (k). THIRD DEFENSE 19. No negligent or wrongful act of any agent and/or em- ployee of the United States of America acting within the scope of his employment in any way caused or contributed to the happening of the subject accident. FOURTH DEFENSE 20. The injury suffered herein by the Plaintiff was due to the negligence of the Plaintiff herein acting by and through its agents and/or employees, WHEREFORE, Defendant, United States of America, demands dismissal of the Complaint herein and for such other, further and different relief which to the Court may be just and proper. Respectfully submitted, ALICE DANIEL Assistant Attorney General Civil Division ANDREA SHERIDAN ORDIN United States Attorney JAMES STOTTER, II Assistant United States Attorney GARY W. ALLEN Assistant Director Torts Branch, Civil Division 26 By: /s/ CECILE HATFIELD Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 14271 Washington, D.C. 20044 Telephone: 202-724-7333 27 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Civil No. 78 0914 EMMA ROSA MASCHER, ALFRED ROSA, GUIDO ROSA, RAYMOND ROSA, BRUNO ROSA, CORIDO ROSA, AND ERNEST ROSA, INDIVIDUALLY AND AS HEIRS AND LEGATEES OF ELIO ROSA, DECEASED, ET AL. PLAINTIFFS, Vv. UNITED STATES OF AMERICA, DEFENDANT COMPLAINT FOR WRONGFUL DEATH Plaintiffs, through their attorneys, SMILEY & LEAR, P.C., SPEISER & KRAUSE, P.C. and SPEISER, KRAUSE & MADOLE, respectfully allege as follows: That pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680, et a!., the plaintiffs bring this ac- tion for wrongful death. That on or about July 10, 1975, administrative claims were filed, pursuant to the provisions of 28 U.S.C. §2675(a), with the Department of Transportation, Federal Aviation Administration, and other related governmental agencies. On October 18, 1977, these claims were denied. Therefore, pursuant to the provisions of 28 U.S.C. §§ 1346(b) and 2675(a), the present action is brought. That defendant operates the Department of Transporta- tion and the Federal Aviation Administration, with head- quarters in Washington, D.C. and related subdivisions lo- cated in this district, and that the negligence described in Paragraphs XIII through XVII, inclusive below, occurred in the Western Region of the Federal Aviation Administra- tion, in Los Angeles, California, within this judicial dis- trict, as well as in Washington, D.C. 28 IV. That this Court has jurisdiction over the parties and the subject matter based on the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq. V. That at all times relevant hereto, the principal business of the Boeing Company (hereinafter referred to as “Boeing”) within the United States was and is the planning, design, manufacture, assembly, testing, modification, servicing, inspection and sale of various types of aircraft, including the Boeing 707 aircraft, and the component parts, equipment, systems and accessories thereof, and manuals and training devices pertaining thereto. VI. That prior to July 11, 1973, Boeing planned, designed, manufactured, assembled, tested, serviced and inspected, within the United States a Boeing 707-320C aircraft, serial number 19841 (hereinafter referred to as the “subject air- craft”), including the component parts, equipment, systems and accessories thereof, and the manuals and training de- vices pertaining thereto, and the subject aircraft was there- after sold and delivered to SEABOARD WORLD AIRLINES INC., (hereinafter referred to as “Seaboard”) for use as a common carrier of passengers and property for hire. VIL. That prior to the sale of the subject aircraft to Seaboard, the aircraft, including its component parts, equipment, sys- tems and accessories thereof, were inspected and certified as being safe and suitable for public use by the defendant, through its employees and agents, acting within the scope of their employment. VIII. That prior to July 11, 1973, the subject aircraft was pur- chased from Seaboard by S.A. EMPRESA DE VIACAO AEREA RIO GRANDENSE, a Brazilian corporation trad- 29 ing as VARIG AIRLINES (hereinafter referred to as “Varig”) for use as a common carrier of passengers and property for hire. IX, That on July 11, 1978, the subject aircraft was operated by Varig on a regular scheduled international flight be- tween Rio de Janeiro, Brazil, and Orly Airport, France, carrying 117 fare-paying passengers. X. That on July 11, 1973, as the subject aircraft approached Orly Airport, France, a fire broke out in the vicinity of a lavatory in the aft section of the subject aircraft, causing various materials used in the fuselage and interior furnish- ings and upholstery of the aircraft to burn and emit danger- ous and poisonous gases and fumes, resulting in death by asphyxiation to plaintiffs’ decedents. XI, That on and prior to July 11, 1978, pursuant to the Fed- eral Aviation Act, defendant United States of America by and through the Administrator of the Federal Aviation Ad- ministration and its employees and agents, acting within the scope of their employment, exercised a non-delegable duty to issue such minimum standards governing the de- sign, materials, workmanship, and construction of civil air- craft as was necessary to promote the safety of such air- craft in air commerce, including international air commerce. XII, That prior to July 11, 1973, employees and agents of the defendant United States, exercised a non-delegable duty to exercise reasonable care in the formulation, issuance, publi- cation, notification and enforcement of minimum standards governing the design, materials, workmanship and con- struction of aircraft intended to be employed in air com- merce including international air commerce as well as a non-delegable duty to warn operators of and passengers in 30 such aircraft of any dangers inherent in said design, materi- als, workmanship and construction. XIII, That prior to July 11, 1978, the defendant, by and through the Administratcr of the Federal Aviation Admin- istration and its employees and agents negligently issued minimum standards relating to the flammability of materi- als used in the interior of civil aircraft including the Boeing 707 aircraft. XIV, That prior to July 11, 1978, the defendant, by and through the Administrator of the Federal Aviation Admin- istration and its employees and agents, acting within the scope of their ermployment, negligently failed to issue mini- mum standards relating to the toxicity of materials in the interior of civil aircraft including Boeing 707 aircraft. XV. That prior to July 11, 1978, the defendant, by and through the Administrator of the Federal Aviation Admin- istration and its employees and agents, acting within the scope of their employment, negligently certificated the in- terior design of the Boeing 707 type aircraft, including but not limited to, the lavatories thereof, the air conditioning and pressurization system thereof, the oxygen system thereof, the smoke evacuation system thereof, and the manuals and instructions pertaining thereto. XVI. That prior to July 11, 1978, the defendant, by and through the Administrator of the Federal Aviation Admin- istration and its employees and agents, acting within the scope of their employment, negligently certificated the pro- duction of the subject aircraft, and following its production, negligently issued an airworthiness certificate relating thereto. XVII. That prior to July 11, 1978, the defendant, by and through the Administrator of the Federal Aviation Admin- 31 istration and its employees and agents, acting within the scope of their employment, negligently failed to warn oper- ators of said aircraft and the flying public including plain- tiffs’ decedents herein, of the dangers inherent in the inte- rior design of the Boeing 707 aircraft, all of which was well known to defendant. XVIII. That the aforesaid negligence of the defendant, by and through its employees and agents, acting within the scope of their employment, was in breach of duties imposed by the Federal Aviation Act, the Civil Air Regulations, the Federal Aviation Regulations, and the common law duty to exercise reasonable care in the premises. XIX, That the death of plaintiffs’ decedents aboard the subject aircraft on July 11, 1973, was proximately caused by the negligent breach on the part of the defendant of its contin- uing, nondelegable duties described above. XX. That as a direct and proximate result of the defendant’s negligent and wrongful conduct in the premises, plaintiffs have sustained pecuniary damages, including loss of sup- port, services, counsel, society, companionship, consorti- um, care, nurture, training, the prospect of inheritance of future accumulations, and other damages, including grief and moral damages. XXI. That as a direct and proximate result of the defendant’s negligent and wrongful conduct in the premises, each of the passengers aboard the subject aircraft suffered great physi- cal pain and mental anguish in contemplation of impending disaster and death, personal injuries and property loss. As a result, the estate of each of the plaintiffs’ decedents has sustained these and other damages. XXII. That by reason of all the foregoing, plaintiffs Emma Rosa Mascher, Alfred Rosa, Guido Rosa, Raymond Rosa, Bruno 32 Rosa, Corido Rosa, and Ernest Rosa have been damaged in the sum of Two Million Two Hundred Seventy Thousand ($2,270,000.00) Dollars; plaintiffs Honor Christine Brogan and Thomas James Patrick Brogan have been damaged in the sum of Three Million Five Hundred Thousand ($3,500,000.00) Dollars; plaintiffs Antoine Marie Rulhe and Denise Louise Rulhe have been damaged in the sum of One Million Four Hundred Seventy-Five Thousand ($1,475,000.00) Dollars; plaintiffs Claude Marie-Josephe Arnaud Lavaud, Francois Jerome Gabriel Lavaud, Sophie Claude Marie Lavaud, Philippe Jean Marie Lavaud, Brigitte Lavaud Pasteyer, and Catherine Christiane Elisa- beth Lavaud have been damaged in the sum of Five Million Two Hundred Thousand ($5,200,000.00) Dollars; plaintiffs Shri Prithi Singh and Ranjeeta Prithi Singh have been damaged in the sum of One Million One Hundred Eighty Thousand ($1,180,000,00) Dollars; plaintiffs Dirce Baratella in Dainelli, Albertina Dainelli, Ugo Dainelli, Ornella Dainelli in Allegri, and Regina Dainelli in Pisano, have been damaged in the sum of One Million Two Hundred Twenty Thousand ($1,220,000.00) Dollars; plaintiffs Zelia Rivetto Griglio and Sergio Griglio have been damaged in the sum of Two Million Six Hundred Thousand ($2,600,000.00) Dollars; plaintiffs Francesca Griglio Bongiovanni, Fernanda Bongiovanni and Alberto Bongiovanni have been damaged in the sum of Two Million Nine Hundred Ten Thousand ($2,910,000.00) Dollars; plain- tiff Ubaldo Zanardi has been damaged in the sum of Two Hundred Fifty Thousand ($250,000.00) Dollars; plaintiffs Maria Lucia Bruder, Thomas Bruder and Georgia Bruder have been damaged in the sum of One Million Five Hun- dred Thousand ($1,500,000.00) Dollars; plaintiffs Halim Aidar Junior, Cristina Berriel Adar and Claudia Berriel Aidar have been damaged in the sum of One Million Seven Hundred Fifty Thousand ($1,750,000.00) Dollars; plaintiff Ana Lucia Teixeira de Andrade Figueira has been damaged in the sum of Two Million ($2,000,000.00) Dollars; plaintiffs Palmira de Oliveira Judice, Zulmira de Oliveira Homem de Mello, Amalia da Cunha e Oliveira, Thereza Cunha de Souza Andrade, Alexandrina de Oliveira Dalmaso, Elio 33 Afonso da Cunha, Selene da Cunha Moraes, Eros Afonso da Cunha, Terezinha Afonso da Cunha and Antonio Afonso da Cunha have been damaged in the sum of One Million ($1,000,000.00) Dollars; plaintiffs Geni Nilsa Diefenthaler, Ignes Diefenthaler, Carla Diefenthaler, Agnes Diefenthaler, and Marcos Diefenthaler have been damged in the sum of Two Million ($2,000,000.00) Dollars; plaintiffs Marcienne Chabrerat Mas, Christian Mas, and Joelle Mas Gros have been damaged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars; plaintiffs Anna Bernstrom Fauconnier, Peter Fauconnier and Mathias Fauconnier have been damaged in the sum of Two Million Five Hundred Thousand ($2,500,000.00) Dollars; plaintiffs Pierre Sarda, Michel Sarda, Alain Sarda and Nicole Sarda de Claviere d’Hust have been damaged in the sum of One Million ($1,000,000.00) Dollars; plaintiffs Maddy Marie Dietrich Aufrere de la Preugne, Solange Aufrere de la Preugne, Isabelle Aufrere de la Preugne, and Anne Marie Aufrere de la Preugne have been damaged in the sum of Three Million ($3,000,000.00) Dollars; plaintiffs Lucienne Dando Tardif, Gerard Tardif and Claire Tardif Marette have been damaged in the sum of Two Million Five Hun- dred Thousand ($2,500,000,00) Dollars; plaintiffs Jacqueline Dubois Fardel, Doris-Marie Fardel and Nicole-Suzanne Fardel have been damaged in the sum of Two Million Five Hundred Thousand ($2,500,000.00) Dollars; plaintiffs Danielle Cojan Ghorbanian, Pascal Karim Ghorbanian and Philippe Guive Ghorbanian have been damaged in the sum of Two Million Six Hundred Thousand ($2,600,000.00) Dol- lars, plaintiffs Marie Sieber-Tschirky, Valentin Sieber, Hedwig Graf-Sieber and Rose-Marie Sieber have been dam- aged in the sum of Two Million Five Hundred Thousand ($2,500,000.00) Dollars; plaintiffs Maria Neusa Consoni Guimaraes, Cristina Lonsoni Guimaraes, Ana Luiza Consoni Guimaraes, Silvia Consoni Guimaraes, Luiz Humberto Guimaraes, and Elza Helena Consoni Guimaraes have been damaged in the sum of Two Million ($2,000,000.00) Dollars; plaintiff Charlotte Danzberg has been damaged in the sum of Five Hundred Thousand ($500,000.00) Dollars; plaintiffs Egon Erny Kirst and Nelly 34 Ebling Kirst have been damaged in the sum of Seven Hun- dred Fifty Thousand ($750,000.00) Dollars; plaintiff Maria Reginato Paganella has been damaged in the sum of Five Hundred Thousand ($500,000.00) Dollars; plaintiffs Clara Zimmerman de Peluffo, Santiago Peluffo, Veronica Peluffo, Agustina Peluffo and Josefina Peluffo have been damged in the sum of Two Million ($2,000,000.00) Dollars; plaintiff Enilda Fernandez de Sortino has been damaged in the sum of Eight Hundred Thousand ($800,000.00) Dollars; plaintiffs Suzanne Seve Jacquiot. Christophe Jacquiot, Denis Jacquiot, and Charlotte Jacquiot have been damaged in the sum of Two Million Four Hundred Fifty Thousand ($2,450,000.00) Dollars; plaintiff Emese Hegedus has been damaged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars; plaintiff Maria Roth has been dam- aged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars; plaintiffs Margit Tarnay, Tunde Tarnay, and Laszlo Tarnay have been damaged in the sum of Two Million Six Hundred Fifty Thousand ($2,650,000.00) Dollars; plaintiffs Felix Gutierrez Acuna and Maria Mercedes Gutierrez Acuna have been damaged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dol- lars; plaintiffs Maria Luiza Pereira de Almeida Leite Ribeiro, Patricia Leite Ribeiro, and Maria Fernanda Leite Ribeiro have been damaged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars; plaintiffs Marina Menezes de Oliveira Carvalho and Sergio Menezes de Oliveira Carvalho have been damaged in the sum of Three Million Five Hundred Thousand ($3,500,000.00) Dol- lars; plaintiffs Magduiena de Auge, Enrique Auge and Juan Claudio Auge have been damaged in the sum of Two Million Five Hundred Thousand ($2,500,000.00) Dollars; plaintiffs Myriam Collier de Lamare, Guilherme de Lamare and Claudia de Lamare have been damaged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars; plaintiffs Jose Narciso da Fonseca e Silva and Isis Souza da Fonseca e Silva have been damaged in the sum of Seven Hundred Fifty Thousand ($750,000.00) Dollars; plaintiffs Geraldo Gouvea Carrazedo and Celina Correa Carrazedo have been damaged in the sum of Five Hundred Thousand 35 ($500,000.00) Dollars; plaintiffs Ciaudia de Souza Weiss, Fabria de Souza Scavone and Alexei Scavone have been damaged in the sum of Nine Hundred Fifty Thousand ($950,000.00) Dollars; plaintiffs Walkiria di Vizio Silvana di Vizio, Eduardo di Vizio and Claudia di Vizio have been damaged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars; plaintiff Paulina Knijnik has been damaged in the sum of Five Hundred Thousand ($500,000.00) Dollars; plainti*’s Amal Veron Yglesias, Raul Yglesias and Elis Aparecida Yglesias have been damaged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars; plaintiffs Moise Daurier, Louis Daurier, Jeanne Daurier, Andre Daurier, Albert Daurier, Georges Daurier, Victor Daurier, Marie Daurier, Yvette Meyer, Helene Barnaud, and Paulette Haro have been damaged in the sum of Two Million Three Hundred Thou- sand ($2,300,000.00) Dollars; plaintiffs Hildegard Juesten, Dr. Ulrich Juesten and Dr. Wolfgang Juesten have been damaged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars; plaintiffs Nancy Palleta dos Santos, Augustinho dos Santos Junior and Airton Palleta dos Santos have been damaged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars; plaintiffs Luciana Zavaroni and Francesca Zavaroni have been dam- aged in the sum of Two Million Five Hundred Thousand ($2,500,000.00) Dollars; plaintiffs Monika Colli, Sven Colli, and Tanja Colli have been damaged in the sum of Two Mil- lion ($2,000,000.00) Dollars; plaintiffs Francisca Arlita Barbosa Quindere, Paulo Barbosa Quindere, Renata Barbosa Quindere, Adriana Barbosa Quindere, Cristina Barbosa Quindere and Luciana Barbosa Quindere have been damaged in the sum of Three Million ($3,000,000.00) Dollars; plaintiffs Cornelia Koeman-Nieuweborer, Maartje Grietje Koeman, Klaas Evert Koeman and Martin Dik Koeman have been damaged in the sum of Three Million ($3,000,000.00) Dollars; plaintiffs Luiz Tiellet, Rivadavia Tiellet, Aristotelino Tiellet, Floah Tiellet da Silva, Luiza de Lourdes Tiellet Oliveira Hilda Alvares, Celanira Tiellet Borges, Therezinha Tiellet Bueno and Dolores Velloso Vianna have been damaged in the sum of Four Million 36 ($4,000,000.00) Dollars; plaintiffs Waldemar Martins Ferreira Filho, Waldemar Ferreira Netto, Ana Maria Mar- tins Ferreira and Maria Antonieta Martins Ferreira have been damaged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars; plaintiffs Maria Isabel Malta Cardozo Barretto Prado, Evangelina Malta Cardozo Junqueira de Aquino, Carlota Josephina Malta Cardozo dos Reis Boto, Francisco Malta Cardozo Neto, Anna Maria Martins Ferreira, Maria Antonieta Martins Ferreira, and Waldemar Ferreira Netto have been damaged in the sum of One Million Five Hundred Thousand ($1,500,000.00) Dollars. WHEREFORE, the plaintiffs demand judgment against the defendant, United States of America, in the total sum of One Hundred Million, Six Hundred Five Thousand ($100,605.000.00) Dollars, and each of them individually de- mands judgment as set forth more particularly in para- graph XXII of this Complaint, incorporated herein by ref- erence, together with interest thereon, and the costs and disbursements of this action. SMILEY & LEAR, P.C. 1819 H Street, N.W., Suite 500 Washington, D.C. 20006 Telephone: (202) 466-8171 /s/ i ae er Se ROBERT R. SMILEY, III SPEISER & KRAUSE, P.C. 200 Park Avenue New York, New York 10017 Telephone: (212) 661-0011 /s/ CHARLES F. KRAUSE SPEISER, KRAUSE & MADOLE 1216 Sixteenth Street, N.W. Washington, D.C. 20036 Telephone: (202) 223-8501 /s/ DONALD W. MADOLE OF COUNSEL: BERRIS & SETON 37 1801 Century Park East Los Angeles, California 90067 By: /s/ TED ORLISS CLAIM FOR DAMAGE, INSTRUCTIONS: Prepare in ink or typewriter. Please read carefully the yn — roval | po pee os = “gy ne -_ supply information requested on both ey i i .U t t INJURY, OR DEATH - sides of this form. Use additional sheet(s) if necessary 1. SUBMIT TO. | 2. NAME AND ADORESS OF CLAIMANT (Number, street, city, State, ‘ ‘ ee , and Zip Code) Federal Aviation Administration | i 800 Independence Avenue, S.W. Washington, D.C. 20591 3. TYPE OF EMPLOY ENT 4. AGE | 5. MARITAL 6 NAME AND ADORESS OF SPOUSE, IF ANY (Number, street, city, State, and STATUS Zip Code) MILITARY | 2% CIVILIAN | 7. PLACE OF ACCIDENT (Give city or town and State; if outside city limits, indicate | 8. DATE ANO DAY 19. TIME mileage ur distance to nearest city ur town) | OF ACCIDENT (A.M OR P.M) Saulx les Chartreux, France | 11 July 1973 1358 GMT 10. AMMOUNT OF CLAIM (in dollars) A PROPERTY DAMAGE B PERSONAL INJURY | C. WRONGFUL DEATH 0. TOTAL 11. DESCRIPTION OF ACCIDENT (State below, in detail, all oie Jacts and circumstances attending the damage, injury, or death, identifying persons and property involved and the cause thereof) laimants decedent ied as a result of in- halation of smoke & toxic gases emitted by a fire which burned out of control in the lavatory of that certain Boeing 707 aircraft bearing Brazilian registry PP-VJZ, manufacturer's serial No. 19841 on July ll, 1973. Conditions producing the fire were proximately caused by the negligence of agents of the F.A.A. in the issuance of type, production & airworthiness certificates relating to said aircraft. 12. PROPERTY DAMAGE NAME ANO ADDRESS OF OWNER, IF OTHER THAN CLAIMANT (Number, street, city, State, and Zip Code) BRIEFLY DESCRIBE KIND ANO LOCATION OF PROPERTY AND NATURE ANDO EXTENT OF DAMAGE (See instructions on reverse side for method uf substantiating claim) 13. PERSONAL INJURY A. STATE NATURE ANO EXTENT OF INJURY WHICH FORMS THE BASIS OF THIS CLAIM 14, WITNESSES NAME AODORESS (Number, street, city, State, and Zip Code) Capt.Gilberto Aranjo da Silva c/o Varig Airlines 2d Officer Alvio Basso Rio de Janeiro Engineer Claunor Bello Brazil Steward Luis Coelho ERS ONLY DAMAGES AND INJURIES CAUSED BY THE ACCIDENT ABOVE AND AGREE TO ACCEPT SAID AMOUNT IN FULL SATISFACTION AND FINAL SETTLEMENT OF THIS CLAIM 15. SIGNATURE OF CLAIMANT (Tiiis signature should be used in all future correspondence) | 16. DATE OF CLAIM CIVIL PENALTY FOR PRESENTING CRIMINAL PENALTY FOR PRESENTING FRAUDULENT FRAUDULENT CLAIM CLAIM OR MAKING FALSE STATEMENTS The claimant shall forfeit and pay to the United States the sum Fine of not more than $10,000 or imprisonment for not more of $2,000, plus double the amount of damages sustained by the | than $ years or both. (See 62 Stat. 698, 749; 18 U.S.C. 287, 1001.) United States. (See R.S. $3490, $438; 31 U.S.C. 231.) REVISED FEBRUARY 1971 GSA FPR 101-118 GENERAL SERVICES ADMINISTRATION-FPMR 101~11.8 STANDARD FORM 95 95-108 20 39 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Civil No. 78-0914 EMMA ROSA MASCHER, ALFRED ROSA, GUIDO Rosa, RAYMOND ROSA, BRUNO ROSA, CORIDO ROSA, AND ERNEST ROSA, INDIVIDUALLY AND AS HEIRS AND LEGATEES OF ELIO ROSA, DECEASED, ET AL., PLAINTIFFS, v. UNITED STATES OF AMERICA, DEFENDANT DEFENDANT UNITED STATES OF AMERICA’S ANSWER TO COMPLAINT I. The allegations contained in paragraph I of plaintiffs’ complaint presents a question of law which is respectfully referred to the Court for its determination. Defendant United States of America admits that admin- istrative claims were filed with the Department of Trans- portation, Federal Aviation Administration, and that these claims were denied. Defendant United States of America denies each and ev- ery allegation contained in paragraph III of plaintiffs’ complaint. IV. The allegations contained in paragraph IV of plaintiffs’ complaint presents a question of law which is respectfully referred to the Court for its determination. Vv Defendant United States of America has insufficient knowledge or information upon which to form a belief as to 40 the truth of the allegations contained in paragraph V of plaintiffs’ complaint. VI. Defendant United States of America has insufficient knowledge or information upon which to form a belief as to the truth of the allegations contained in paragraph VI of plaintiffs’ complaint. VIL. Defendant United States of America has insufficient knowledge or information upon which to form a belief as to the truth of the allegations contained in paragraph VII of plaintiffs’ complaint. VIII. Defendant United States of America has insufficient knowledge or information upon which to form a belief as to the truth of the allegations contained in paragraph VIII of plaintiffs’ complaint. IX. Defendant United States of America has insufficient knowledge or information upon which to form a belief as to the truth of the allegation contained in paragraph IX of plaintiffs’ complaint. ) «i Defendant United States of America has insufficient knowledge cr information upon which to form a belief as to the truth of the allegations contained in paragraph X of plaintiffs’ complaint. XI, Defendant United States of America denies each and ev- ery allegation contained in paragraph XI of plaintiffs’ complaint. XII, Defendant United States of America denies each and ev- ery allegation contained in paragraph XII of plaintiffs’ complaint. 41 XIII. Defendant United States of America denies each and ev- ery allegation contained in paragraph XIII of plaintiffs’ complaint. XIV. Defendant United States of America denies each and ev- ery allegation contained in paragraph XIV of plaintiffs’ complaint. XV. Defendant United States of America denies each and ev- ery allegation contained in paragraph XV of plaintiffs’ complaint. XVI. Defendant United States of America denies each and ev- ery allegation contained in paragraph XVI of plaintiffs’ complaint. XVII. Defendant United States of America denies each and ev- ery allegation contained in paragraph XVII of plaintiffs’ complaint. XVIII. Defendant United States of America denies each and ev- ery allegation contained in paragraph XVIII of plaintiffs’ complaint. XIX. Defendant United States of America denies each and ev- ery allegation contained in paragraph XIX of plaintiffs’ complaint XX. Defendant United States of America denies each and ev- ery allegation contained in paragraph XX of plaintiffs’ complaint. XXI Defendant United States of America denies each and ev- ery allegation contained in paragraph XXI of plaintiffs’ complaint. 42 XXII. Defendant United States of America denies each and ev- ery allegation contained in paragraph XXII of plaintiffs’ complaint. AFFIRMATIVE DEFENSES As and for its affirmative defenses the United States of America asserts as follows: XXIII, FIRST AFFIRMATIVE DEFENSE Plaintiff failed to state a claim upon which relief can be granted against this defendant. XXIV. SECOND AFFIRMATIVE DEFENSE Defendant United States of America and its agencies and employees exercised due care and diligence in all matters alleged in the complaint herein and no act or failure to act of this defendant or any agency or employee of this defend- ant was the proximate cause of any damage, loss or injury to plaintiff. XX‘. THIRD AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §2680(a)(h) and (k). XXVI. FOURTH AFFIRMATIVE DEFENSE No cause of action lies against the United States for the promulgation of minimum regulatory standards. fo XXVIL. FIFTH AFFIRMATIVE DEFENSE No cause of action lies against the United States for the certification of aircraft. WHEREFORE, Defendant, United States of America, demands that the Complaint herein be dismissed as against it, together with all appropriate costs, fees and expenses and for such other and further relief as the Court may deem just and proper. 43 ANDREA SHERIDAN ORDIN United States Attorney /s/ WILLIAM D. BLAKELY Trial Attorney Aviation Section, Civil Division U.S. Department of Justice Washington, D.C. 20530 202-739-4309 Of Counse!: JOHN R,. HARRISON Assistant Chief Counsel GARY W, ALLEN Attorney Federal Aviation Administration U.S. Department of Transportation Washington, D.C. 20591 44 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant’s Answer To Complaint was mailed this 16th day of May, 1978, to: ROBERT R, SMILEY, III SMILEY & LEAR, P.C. 1819 H Street, N.W., Suite 500 Washington, D.C. 20006 CHARLES F, KRAUSE SPEISER & KRAUSE, P.C. 200 Park Avenue New York, New York 10017 DONALD W. MADOLE SPEISER, KRAUSE & MADOLE 1216 Sixteenth Street, N.W. Washington, D.C. 20036 s/ Sere WILLIAM D, BLAKELY 45 ROBERT R., SMILEY, Esq. SMILEY, MURPHY, OLSON & GILMAN 1819 H Street, N.W. Washington, D.C. 20006 Telephone: (202) 466-8171 JOSEPH T. COOK, Esq. SPEISER, KRAUSE & MADOLE 700 South Flower Street Los Angeles, California 90017 CHARLES F. KRAUSE, ESQ. SPEISER & KRAUSE 200 Park Avenue New York, New York 10017 Attorneys for Plaintiffs Mascher, et al. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Case NO, CV-78-0914-WPG EMMA ROSA MASCHER; ALFRED ROSA; GUIDO ROSA; RAYMOND RoSa; BRUNO ROSA; CORIDO ROSA; AND ERNEST ROSAD, INDIVIDUALLY AND AS HEIRS AND LEGATEES OF EILO Rosa, DECEASED, ET AL., PLAINTIFFS, v. DEFENDANT PLAINTIFFS MASCHER ET AL.’S FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH, SECOND COUNT Plaintiffs, through their undersigned attorneys Timothy J. Cook, Robert R. Smiley, Speiser and Krause P.C. and Speiser, Krause and Madole, amending their complaint to add a second Cause of Action against defendant United States of America allege as follows: Plaintiffs incorporate by reference, paragraphs I-X, XIII-XVII, XXI and XXII of the Complaint herein filed on March 9, 1980 as if fully restated herein. 46 XXIII That on and prior to July 11, 1973, pursuant to the Fed- eral Aviation Act, defendant United States of America by and through the Administrator of the Federal Aviation Ad- ministration and its employees and agents, acting within the scope of their employment, undertook to issue such minimum standards governing the design, materials, work- manship, and construction of civil aircraft as was necessary to promote the safety of passengers of such aircraft in air commerce, including international air commerce, thereby inducing reliance on such activities by the airlines and pas- sengers alike. XXIV Prior to July 11, 1973, pursuant to certain bilateral agreements between the United States of America and the Government of Brazil, and in reliance upon certain inspec- tions of the subject aircraft allegedly conducted by employ- ees of the Federal Aviation Administration or its predeces- sor agency, the Government of Brazil certified the subject aircraft as airworthy. XXV Agents of the Federal Aviation Administration or its predecessor agency negligently failed to make inspections which the said agency undertook to make, or in the alterna- tive, conducted said inspections negligently. XXVI That as a direct and proximate result of the defendant’s negligent inspection, or failure to inspect, plaintiffs have sustained pecuniary damages, including loss of support, services, counsel, society, companionship, consortium, care, nurture, training, the prospect of inheritance of fu- ture accumulations, and other damages, including grief and moral damages, as more particularly appears in paragraph XX of the complaint. XXVII That as a direct and proximate result of the defendant’s negligent inspection or failure to inspect, each of the pas- 47 sengers aboard the subject aircraft suffered great physical pain and mental anguish in contemplation of impending dis- aster and death, personal injuries and property loss. As a result, the estate of each of the plaintiffs’ decedents has sustained these and other damages, as more particularly appears in paragraph XXI of the complaint. XXVIII That the aforesaid acts or omissions of the defendant, by and through its employees and agents, acting within the scope of their employment, was in breach of duties arising from the undertaking of inspection which, if negligently performed or omitted, increased the risk of harm to plain- tiffs and their decedents. XXIX That the aforesaid acts or omission of the defendant, by and through its employees and agents, acting within the scope of their employment: 1. were undertaken to protect the safety of aircraft and passengers in air commerce, including international air commerce; 2. proximately caused a cabin fire which was a clearly foreseeable result of a failure to inspect, or a negligent inspection; 3. were the direct proximate causes of the deaths of plaintiffs’ decedents; 5. was clearly contrary to the explicit safety policies of air commerce of the United States and the international community. WHEREFORE, the plaintiffs demand judgment against the defendant United States of America in the total sum of One Hundred Million, Six Hundred Five Thousand ($100,605,000.00) Dollars, and each of them individually as set forth more particularly in paragraph XXII of the Com- plaint, incorporated herein by reference, together with in- terest thereon, and the costs and disbursements of this action. Respectfully submitted. /s/ ROBERT R, SMILEY SMILEY, MURPHY, OLSON & GILMAN 1819 H STREET, N.W. WASHINGTON, D.C. 20006 /S/ JOSEPH T. CooK Speiser, Krause & Madole 700 South Flower Street Los Angeles, CA 90017 Attorneys for Plaintiffs 49 OFFICE OF THE SECRETARY OF STATE FOR TRANSPORTATION BOARD OF INQUIRY ACCIDENT INVOLVING THE BOEING 707 PP-VJZ OF THE VARIG COMPANY (SAULX-les-CHARTREAUX-July 11, 1973) FRENCH VARIG REPORT Released 4/6/76 CONTENTS DECREE CREATING THE BOARD OF INQUIRY 1. SUMMARY 2. TECHNICAL INVESTIGATIONS 2.1 The flight 2.2 The victims 2.3 Damage to the aircraft 2.4 Damages to third parties 2.5 Information on the crew 2.6 Information on the aircraft 2.7 Meteorological conditions 2.8 Aids to navigation 2.9 Telecommunications 2.10 Airports and ground installations 2.11 Flight recorders 2.12 Wreckage 2.13 Medical and pathological information 2.14 Fire 2.15 Survival 2.16 Expert evaluations 2.17 Additional information 3. ANALYSIS OF THE FACTS 4. CONCLUSIONS 50 DECREE CREATING THE BOARD OF INQUIRY By decree of July 12, 1973, a Board of Inquiry was estab- lished for examining the circumstances, seeking the causes and bringing out the facts in the accident occurring on July 11, 1973 approaching Orly Airport involving a B 707, regis- tered PP-VJZ of the Brazilian Company Varig. The Board is composed of the following members: Mr. René LEMAIRE, Engineer, Civil Engineering Department, Chief of General Inspection for Civil Aviation, CHAIRMAN; General Maurice MARTINET, VICE-CHAIRMAN; Mr. Philippe TESTU, check pilot, Head of the Flight Control Agency; Mr. Paul CAROUR, general engineer, civil aviation; Mr. Paul GUILLEVIC, chief engineer, civil aviation; Dr. GIGNOUX, Vice-President of the Civil Aeronaut- ics Medical Council; Mr. André GELY, aircraft commander for Air France. 1. SUMMARY Date of the Accident Aircraft Wednesday, July 11, 1973 Boeing 707 PP-VJZ at 1402 UT* Owner and Operator Location of the accident The Brazilian Company SAULX-les-CHARTREUX VARIG 5 km southwest ofthe thresh- Persons aboard old of Orly runway 07 Captain DA SILVA Type of flight + 16 (2 crews) Regular international trans- 117 passengers port, RIO DE JANEIRO—PARIS Summary of the accident Fire on board during approach to ORLY Forced landing 5 km before the runway threshold, in the countryside near Longjumeau Wreckage destroyed by fire Consequences Material Third Personnel Killed Injured Damage Lading Parties Crew 7 10 Destroyed Destroyed Damage to Passengers 116 1 by iznpact crops and fire 51 *All times mentioned in this report are expressed in univer- sal time (UT). Legal time may be obtained by adding one hour thereto. 2. TECHNICAL INVESTIGATIONS 2.1 The Flight On July 11, 1973 the B-707, PP-VJZ flies the regular VARIG line RG 820 between Rio de Janeiro and Paris. At 3:03 the plane takes off from GALEAO airport with a weight of 326,700 pounds with 117 passengers and 17 crew members aboard. At 3:50 level 330, cruising level, is reached. The flight proceeds with no particular difficulty at a Mach in the vicin- ity of 0.8. At 6:26 the plane ascends to level 370, and at 11:53, to level 390. Cruising is completed at level 350. At 13:40, when the plane makes contact with the West Terminal sector of the Paris ACC, it is in descent in the di- rection of the CHARTRES VOR (CHW), estimated time 13:52. At 13:48, it passes level 230, and at 13:46, level 170. At 13:50, Paris ACC has the plane turn slightly to the right, short-circuiting CHW, and authorizes continuation of the descent to level 100, reached at 13:52, then level 80, reached at 13:55. At this time, the plane is heading towards the TOUSSUS (TSU) VOR. At 13:57 the VARIG 820 is transferred to ORLY ap- proach, with which it makes contact one minute later. It receives instructions to maintain level 80 and to head for OLS, which will bring it into the tail-wind branch of runway 26, in operation at ORLY. The meteorological con- ditions are excellent and no special procedure is necessary. At 13:58'20" the aircraft signals a “fire aboard” and re- quests an “emergency descent”. According to the Captain, this request follows the an- nouncement by the cabin crew of smoke in the rear of the passenger cabin. At 1359 the plane is authorized to descend to 3,000 feet for landing on runway 07, only 22 MN away and which should allow a direct approach. 52 In response to a request from Control, the pilot signals “total fire”, while the radar brings it onto line 07 and situ- ates it 10 MN from the threshold. According to the crew, this announcement coincides with the cabin steward’s alarming indication that the situation is (illegible) invading the cabin and that the passengers are being asphyxiated. The transponder code appears for about one more minute on the Orly radar screen. The crew puts on the oxygen masks and smoke goggles. However, the black smoke is invading the cockpit to such an extent that the pilots can no longer see the instruments. The side windows are open. Judging the situation desper- ate, the Captain decides to effect a forced landing. This is achieved at 14:03, the pilots viewing the ground from the side windows. Witnesses observe the plane just before its forced land- ing. They notice a trail of smoke escaping from below the rear fuselage. The landing site selected, situated in bearing 230 of the threshold of runway 07, 5 km from the latter, is a flat area with small cultivations having a mean altitutde of 76 me- ters, south of the village of SAULXIER (Municipality of SAULX-les-CHARTREUX, Essonne). The landing gear were extended, the flaps partially ex- tended, the plane at a heading of about 080°, slightly in- clined to the left and with a high, nose-up longitudinal attitude. It touched down just beyond a small road after it had taken the tops off a few small fruit trees. Impact was se- vere. The left landing gear yielded immediately and was followed shortly thereafter by the right landing gear. The plane then slid on its jet engines, then on its belly for al- most 500 m. However, the unequal loss of the main landing gear and the initial inclination to the left triggered a skid- ding movement which increased until the plane came to a halt. The wreck came to a halt at heading 280° after losing all of its jet engines and half of the left wing. The forced land- ing was completely successful. The fuselage suffered little 53 damage. Only the bottom of the hull behind the main land- ing gear wells is misshapen. According to witnesses, the only visible sign of fire after the plane stopped is smoke issuing to the right of the base of the fin. Ten occupants of the plane escape by their own means: 4 through the right side-window of the cockpit, 4 through the left side-window, 1 through the left front passenger door, 1 through the right front galley door. Among these ten survivors, all crew members, two (the pilots) were seriously injured, one of them by a tree limb which pierced the front pressure bulkhead while the plane was sliding along the ground, the others suffered from smoke inhalation. These survivors were very soon met by the farmers witnessing the crash, but all intervention is impossible be- cause of the fire which developed inside the cabin, making access therein impossible. When the firemen arrive, 6 to 7 minutes after the crash, the fire has caved in the top part of the fuselage in the rear. The plane is filled with smoke. There is no sign of life. The firemen evacuate 4 motionless occupants through the for- ward door. Only one will survive. A fire breaks out in the right wing between jet engine struts 3 and 4 shortly before the arrival of the firemen. The left and right wing-root tanks and the center tank do not ig- nite. On the other hand, fire will break out in the rear hold about one hour after the crash. 2.2 Victims Of The Crash Crew Passengers Third Parties Fatally injured 7 116 none Injured 10 1 none Uninjured 0 0 2.3 Damage To The Aircraft The aircraft was completely destroyed, with the excep- tion of equipment contained in the electronics hold, which it was possible to salvage. 54 2.4 Damages To Third Parties Damages to third-parties consist in the destruction of crops in the crash zone, first by the plane, then by the res- cuers, and in the destruction of several fruit trees. 2.5 Information On The Crew Due to the length of the flight, there were 17 crew mem- bers, twice the normal number. Cockpit personnel AIRCRAFT COMMANDER (on duty) Name: GILBERTO ARAUJO DA SILVA Date and place of birth: November 12, 1923, SANTA LUZIA Marital status: married Airline transport pilot’s certificate no. 238 License and ratings valid until February 28, 1974 Medical examination valid until September, 1973 (unrestricted) Joined the Company on February 1, 1952 Qualified for the B-707 on February 19, 1968 Date of last in-flight control: August 17, 1972 Date of last simulated control: February 26, 1973 Total flying time logged: 17,959.30 In the 30 days prior to the accident: 29.14 In the 48 hours prior to the accident: 14.03 On the type of plane involved in the accident: 4,642.44 Prior accidents: none Rest before final flight: 35 hrs. FIRST PILOT (on duty) Name: ANTONIO FUZIMOTO Date and place of birth: July 10, 1928 at BAURU Marital status: married Airline transport pilot’s certificate no. 787 License and ratings valid until August 31, 1973 Medical examination valid until November, 1973 (unrestricted) Joined the Company on February 1, 1952 Qualified for the B-707 on December 5, 1969 Date of last in-flight control: February 21, 1973 55 Date of last simulated control: August 7, 1972 Total flying time logged: 17,788.27 hrs. In the 30 days prior to the accident: 73 hrs. 47 min. In the 48 hours prior to the accident: 11.03 On the type of plane involved in the accident: 3,331.33 Prior accidents: none Rest before final flight: 61 hours. SECOND PILOT (on duty) Name: ALVIO BASSO Date and place of birth: December 1, 1926 at BENTO GONCALVES Marital status: married Commercial pilot’s certificate no. 1097 Group A single-engine rating valid without limitation Medical examination valid until November 30, 1973 (unrestricted) Joined the Company on May 4, 1954 Qualified for the B-707 on September 14, 1962 Total flying time logged: 12,613.02 In the 30 days prior to the accident: 69.38 In the 48 hours prior to the accident: 11.03 On the type of plane involved in the accident: 5,055.46 Prior accidents: none Rest before final flight: 230 hours SECOND PILOT Name: RONALD UTERMOEHL Date and place of birth: May 2, 1950 at PONTA GROSSA Marital status: single Commercial pilot’s certificate no. 3886 Group A single-engine rating valid without limitation Medical examination valid until September 30, 1973 (unrestricted) Joined the Company on February 16, 1970 Qualified for the B-707 on December 6, 1972 Total flying time logged: 1,540.19 In the 30 days prior to the accident: 47.26 In the 48 hours prior to the accident: 18.14 On the type of plane involved in the accident: 768.41 Prior accidents: none Rest before final flight: 24 hours. 56 MECHANIC Name: CARLOS DIFFENTHALER NETO Date and place of birth: September 20, 1934, PORTO ALEGRE Marital status: married Mechanic's certificate no. 731 License and rating valid until April 30, 1974 Medical examination valid until March 31, 1974 (unrestricted) Joined the Company on March 1, 1954 Qualified for B-707 on June 20, 1960 Date of last in-flight control: April 20, 1973 Date of last simulated control: April 4, 1973 Total flying time logged: 16,672.39 In the 30 days prior to the accident: 90.53 In the 48 hours prior to the accident: 15.43 On the type of plane involved in the accident: 11,922.59 Prior accidents: none Rest before final flight: 33 hours MECHANIC (on duty) Name: CLAUNOR BELLO Date and piace of birth: February 7, 1935, SAO PAULO Marital status: Married Mechanic’s certificate no. 814 License and rating valid until October 31, 1973 Medical examination valid until December 31, 1973 (unrestricted) Joined the Company on May 8, 1960 Qualified for B-707 on September 26, 1966 Date of last in-flight control: October 11, 1972 Total flying time logged: 9,655.16 In the 30 days prior to the accident: 64.32 In the 48 hours prior to the accident: 11.03 On the tye [sic] of plane involved in the accident: 4,827.39 Prior accidents: none Rest before final flight: 63 hours NAVIGATOR (on duty) Name: ZILMAR GOMES DA CINHA Date and place of birth: July 1, 1930, ARARUAMA Marital status: married 57 Navigator’s certificate: No. 114 License and ratings valid until January 31, 1974 (B-707 and DC-8) Medical examination valid until June, 1974 (unrestricted) Joined the Company on September 1, 1955 Qualified for B-707 on November 30, 1968 Date of last in-flight control: January 7, 1973 Total flying time logged: 14,140.09 In the 30 days prior to the accident: 74.42 In the 48 hours prior to the accident: 11.03 On the type of plane involved in the accident: 3,286.45 Prior accidents: none Rest before final flight: 193 hours. NAVIGATOR Name: SALVADOR RAMOS HELENO Date and place of birth: June 30, 1928, RIO DE JANEIRO Marital status: married Navigator’s certificate no. 89 License and rating valid until July 31, 1973 Medica! examination valid until January 22, 1974 (unrestricted) Joined the Company on August 30, 1951 Qualified for B-707 on September 12, 1965 Date of last in-flight control: February 4, 1973 Total flying time logged: 15,157.02 In the 30 days prior to the accident: 75.22 In the 48 hours prior to the accident: 11.03 On the type of plane involved in the accident: 5,937.22 Prior accidents: none Rest before final flight: 183 hours. Cabin Crew CHIEF STEWARD Name: JOAO EGIDIO GALLETI Date and place of birth: July 21, 1939, LINS Marital status: married Certificate no. 1003 Ratings valid until December 16, 1973 (B-707 and DC-8) Medical examination valid until November, 1973 (unrestricted) 58 Joined the Company on September 1, 1962 Total flying time logged: 9,064 On the type of plane involved in the accident: 4,841 Rest before final flight: 96 hours STEWARD Name: EDEMAR GONCALVES MASCARENAS Date and place of birth: October 20, 1941, CURITIBA Marital status: married Certificate no. 684 Ratings valid until January 29, 1975 (B-707 and DC-8) Medical examination valid until January 14, 1974 (unrestricted) Joined the Company on October 6, 1965 Total flying time logged: 6,666 On the type of plane involved in the accident: 3,582 Rest before final flight: 96 hours. STEWARD Name: CARMELINO PIRES DE OLIVEIRA, Jr. Date and Place of birth: May 20, 1942, SAO PAULO Marital status: married Certificate no. 1546 Ratings valid until October 12, 1973 (B-707 and DC-8) Medical examination valid until September 23, 1973 (unrestricted) Joined the Company on June 12, 1967 Total flying time logged: 5,080 On the type of plane involved in the accident: 3,246 Rest before final flight: 48 hours. STEWARD Name: SERGIO CARVALHO BALBINO Date and place of birth: April 18, 1945, ALEGRE Martial status: single Certificate no. 1704 Ratings valid until March 19, 1975 (B-707) Medical examination valid until December 14, 1973 . (unrestricted) Joined the Company on January 11, 1968 Total flying time logged: 3,983 On the type of plane involved in the accident: 2,407 59 Rest before final flight: 72 hours STEWARD Name: LUIZ EDMUNDO COELHO BRANDAO Date and place of birth: May 17, 1939, RIO DE JANEIRO Marital status: single Certificate No. 1855 Ratings valid until June 16, 1974 (B-707 and DC-8) Medical examination valid until January, 1975 (unrestricted) Joined the Company on September 20, 1968 Total flying time logged: 3,295 On the type of plane involved in the accident: 779 Rest before final flight: 96 hours STEWARD Name: ALAIN HENRI TERSIS Date and place of birth: August 13, 1946, PARIS (France) Marital status: single Certificate no. 2653 Ratings valid until April 30, 1974 (B-707) Medical examination valid until September 23, 1973 (unrestricted) Joined the Company on February 4, 1972 Total flying time logged: 937 On the type of plane involved in the accident: 886 Rest before final flight: 48 hours. STEWARDESS Name: ANDREE PHIA Date and place of birth: January 22, 1949, CAIRO (Egypt) Marital status: single Certificate no. 2053 Ratings valid until May 31, 1975 Medical examination valid until November 11, 1973 (unrestricted) Joined the Company on October 1, 1969 Total flying time logged: 3,015 On the type of plane involved in the accident: 2,685 Rest before final flight: 120 hours. STEWARDESS Name: ELVIRA STRAUSS Date and place of birth: Apri] 28, 1949, FRANKFURT (Germany) Marital status: single Certificate no. 2601 Ratings valid until December 22, 1973 Medical examination valid until October 13, 1973 (unrestricted) Joined the Company on September 15, 1971 Total flying time logged: 1,250 On the type of plane involved in the accident: 1,181 Rest before final flight: 48 hours. CHIEF STEWARDESS Name: HANELORE DANZBERG Date and place of birth: September 9, 1938, PORTO ALEGRE Marital status: single Certificate no. 265 Ratings valid until] November 11, 1973 Medical examination valid until October 5, 1973 (unrestricted) Joined the Company on March 4, 1961 Total flying time logged: 7,989 On the type of plane involved in the accident: 4,345 Rest before final flight: 48 hours 2.6 Information On The Aircraft The PP-VJZ was a Boeing 707 345 C (manufacturing no. 19.841) which was built for the SEABOARD Company, but purchased by VARIG Company, which had leased it to SEABOARD for some time. Its Certificate of Airworthiness was no. 5712, 1968, which had been renewed the last time on February 12, 1973 and was valid until August 12, 1973. Its total utilization time was 21,470 hours (5,677 land- ings). Utilization time since the annual inspection on May 15, 1973 was 539 hours. The last brief inspection occurred on June 24, 1973. 61 The history of the type JT3 D3 B jet engines is as follows: Position 1 2 3 4 No. 632.945 645.946 667.821 668.246 Total hours 24,571 16,479 15,966 20,094 Hours since RG 2,225 1,025 3,698 4,594 The status of the plane regarding mandatory inspections and modifications is correct. Reports from flights prior to the accident reveal no irregularities which could have had a bearing on the accident. Upon departure from RIO, the weight at takeoff was within the prescribed limits: 326,700 pounds, 153,000 pounds of which was fuel, as was the load distribution: 21.3%. The arrangement of the cabin corresponded to version F: one Ist-class cabin with 20 seats in 5 rows, a tourist cabin with 112 seats, 3 of which were —(illegible)— Forward of the first class cabin there was a galley, a rest station for the crew and three rest rooms. To the rear of the tourist cabin there was a galley, three rest rooms and a closet. Interior design Originally, the interior design of this plane was in con- formity to specification Boeing D.619.676. In 1971, the cabin decoration was replaced by a more at- tractive decoration, conforming to specification Boeing D6.25.601, called WIDE BODY LOOK. The renovation basically concerned the seat covers, the panelling of the walls and ceiling of the passenger cabin, but the interior design of the rest rooms remained unchanged. The renovation was performed by the VARIG Company. The material needed for the transformation was supplied by Boeing, with the exception of the carpeting and the fabric for the seat covers, which VARIG procured directly. These materials underwent quality control and in particular a test for flame resistance, before they were used. Specification D6 25.601 was fully respected, with the ex- ception of the PNC seat covers, where vinyl was replaced by 62 leather. This material nonetheless satisfies the requirements of the regulation. Location of the portable orygen tanks During the life of the plane, the portable oxygen tanks for the rear area were placed in three different locations. Origi- nally, they were stored near the cabin ceiling in the baggage racks. Incidents occurring during flight led the Company to seek a place that was cooler and less exposed to unexpected handling. They were then placed behind the last row of seats, near the floor, along the rear galley. It soon became evident that this place is used by passengers to store their carry-on baggage. For this reason, the Company had a closed rack built inside the closet to store the four oxygen tanks. The regulation requires only that it be easy to gain access to the tanks. 2.7 Meteorological Conditions The meteorological conditions during the descent and the approach were excellent. Orly observations were as follows: 1300 hours—Wind 340/8 Kt Clouds: 3/8 cirrus at 9000 m Visibility: 15 km Temperature: +24.9° Dew point: +10.8° Humidity: 41% QFE: 1008 QNH: 1018 1400 hours—Wind: 280/6 Kt Clouds: 3/8 cirrus at 9000 m 3/8 alto cumulus at 3500 m Visibility: 15 km Temperature: +25.8° Dew point: 11.4° QFE: 1007 QNH: 1017 1400 UT corresponds to 1500 hours local time. There was almost peak brightness from the sun. 2.8 Aids To Navigation The radio aids were functioning normally and had no in- fluence on the occurrence of the accident. 63 2.9 Telecommunications The telecommunications equipment was functioning properly. The loss of contact during final approach can be attrib- uted, on the one hand, to the fact that the crew did not po- sition its selection box on “mask” and on the other hand, lis- tening over the loud-speaker became impossible when the side windows were opened. The recording of control radar images was utilizable. 2.10 Airports And Ground Facilities The facilities played no part in the origin of the accident. 2.11 Flight Recorders The PP-VJZ was equipped with a UDC flight data re- corder type 542 (time — bearing — speed — altitude — vertical acceleration), but had no cockpit voice recorder. The recorder was placed in the tail cone, behind the pres- sure bulkhead. The temperature of the cylindrical protec- tive case was enough to burn off the paint from its front surface; however, the recorder itself was intact and the metal tape could be read normally. The recorder functioned properly, but stopped during the descent at level 80. The examination of the apparatus ex- cludes the possibility that this was caused by direct heating or linked to a mechanical failure. The rear pressure bulkhead melted, but the slight dam- age it suffered in the rear point indicates that this bulkhead gave way after the crash. The indications given by the crew and by the Air Traffic Control in their messages made it possible to establish a quite accurate correlation between the audio recordings and the FDR. This made it possible to establish the time the recorder stopped at 13:58'30" + 30 seconds. 2.12 Wreckage 2.12.1 Tracks on the ground The main landing gear of the plane make contact with ground that is hard and dry. The depth of the tracks shows that the plane set down cleanly. A tilt to the left of about 4° was revealed by the fact that the left reactors touched the ground almost immediaely af- ter the main landing gear. 64 The elevation of the plane is indicated not only by the tracks and the slight damage suffered by the front of the fuselage, but especially by the fact that reactor no. 1 tou- ched the ground before reactor no. 2. The main landing gear give way almost immediately and the plane, resting on its inside reactors for 48 meters after the initial contact, slides thusly in a straight line for 265 meters before crossing a dirt road. After this the track in the ground inclines to the left. The plane is skidding to the right when it runs into an ap- ple tree with its radome and left wing. A large branch from this apple tree enters the cockpit behind the instrument panel on the left-hand side, while the left wing is cut in half. This shock accelerates the skidding and the plane comes to a nalt 240 meters later, after travelling a total distance on the ground of almost 600 meters at a heading which is al- most the opposite of the initial heading. 2.12.2 Examination of the fuselage The damage to the fuselage during the crash is slight. It did not break. The ventral keel is intact. Structural defor- mations are minor, except near the rear hold. The lower skin is torn only at the level of the left rear corner of the rear hold. It is probable that the sliding over the ground flattened the hull bottom under this rear hold, thus creating a sharp angle which the final skidding opened. This tear, parallel to one of the stringers, extends over ap- proximately one meter. Under the floor, the fuselage suffered little damage from the fire. The electronic hold is almost intact. The front landing gear leg was torn off at the end of the skidding and remained perpendicular to the gear well. The front cargo compartment is simply blackened by soot. Its door is func- tioning. The oxygen tanks for this compartment are intact and show no sign of heating. The air conditioning hold is in good condition. The mid-wing frame is intact. The main landing gear wells suffered only from the tearing away of the gear. The cooling units were partially torn off just be- fore the plane stopped. 65 The rear cargo compartment suffered from both the crash and the fire. The floor above this compartment was 75% melted. The oxygen tanks from this compartment did not explode. They are empty and burnt. The luggage was partially burnt. The unused compartment behind the cargo compartment, i.e., under the galley and the rest rooms, was damaged by fire in those places were there is no more upper floor. The tai! cone shows traces of fire only near the pressure bulkhead. Damage by fire to the fuselage above the floor level in- creases when moving away from the forward part of the plane. The top of the fuselage melted from the front of the first class cabin as far as the rear pressure bulkhead. On the sides, the damage stops above the port-holes in front of the wing, but continues downwards almost to the floor level behind the wing. In front of the wing and on the wing, the floor is intact. In front of the first class cabin, the carpet is only part‘ally burned. On the other hand, the floor has disappeared under the closet, the access corridor for the rear main door, facing the galley, and behind the tourist class cabin. The flooring under the galley and the fuselage wall which it rests against, did not give way. The rear pressure bulkhead melted. The four portable oxygen tanks were found burned and empty on their rack. They had lost their valves and finishings. This area is one of the points of maximum fire intensity. Between the rear pressure bulkhead and the trailing edge of the wing, only the metal parts of this part of the cabin remained, with the exception, however, of what was in the galley. The containers protected the combustible products which they contained and thus made it possible to identify them. While the effect of the fire in the rear is almost identical on the floor and on the ceiling, from the first-class cabin the influence of the fire increases when moving away from the floor. This can be better seen in the cockpit, where the in- fluence of the heat is almost non-existent below the naviga- tor and mechanic’s panel. 66 2.12.3 Examination of the wings and rudders. The left wing is sheared between struts 1 and 2. How- ever, the control cables did not give way and the extremity of the wing stayed with the main wreckage. Tanks 2 and 5 contain fuel. The right wing burned on the level of tank 4. Tank 3 did not suffer from the fire, but was emptied as a result of dam- age to the wing. Jet engine struts 1 and 2 were torn off, while struts 3 and 4 remained in place. The leading edge flaps are extended. The trailing edge flaps are partially extended: 13 threads on the feed screw, i.e., 6° of flap. Ailerons and spoilers were damaged only by the crash. The tail units are in place and only slightly damaged. The control nut for the fin is at 17 threads, high position, corre- sponding to a setting between 0 and 1° plane nose-down. The control cables for the horizontal and rudder stabilizer passing under the floor which burned, are in place. 2.12.4 Examination of the cockpit Other than panel P 8 (instrument panel of left-hand pilot seat) whose instruments were torn away from and pushed back onto their support, the cockpit was undamaged by the crash. The heat in the upper part did no more than impair the breaker panels, deform the switches and obscure the instruments. Indications concerning the general configuration of the plane are as follows: Plane: Landing gear control: lowered Flap control: 14° Flap indicator: Outer L 30° R 0° Inner L 43° R 27° Air brake control: 50° (handle unjammed) Fire-break: not pulled Wing and naceile de-icers: off Stabilizer: 0° Aileron trim: 1° to the right 67 Rudder trim: at neutral Automatic pilot: off Transponder: operating Doppler indicator: 166 KT on both Fin (right indicator inoperable) max. left. Signs and exit lights: on Flight recorder control: broken Passenger oxygen: off Crew oxygen: on Air conditioning: Turbocharger controls 2, 3, 4: normal Tapping control: 1 and 3 on 2 and 4 off Wing insulation valve control: left off right on Dynamic air intake control: off Control for air conditioning units: both off Control for thrust recovery valves: off Control for mixture valves: both on manual Electrical supply: D.C.—battery on measurement selector on primary T.R. A.C.—all alternators dog-clutched primary bus-bar on alternator 3 parallel control selector on alternator 3 Exciter relay switch: normal Line relay switch: normal Interlocking relay switch: normal Wattmeter: minimum Galley power supply: off 2.13 Medical and Pathological Information 122 bodies were found on the ground following the forced landing of the B-707 PP-VJZ on July 11, 1973 at / 1500 hours in the community of SAULX-les. af CHARTREUX (Essonne), or: 116 out of the 117 passengers who boarded the plane 6 crew members out of the 17 who boarded the plane, 4 68 A while the only surviving passenger and the 11 surviving crew members had to be transported to the Henri Mondor Hospital in Créteil. Among the latter, Mr. HELENO SALVADORE, navi- gator, had attempted to take cover in the forward rest rooms. He was burned externally on the face and neck, and internally over the mucous membranes of the digestive and respiratory tracts in the throat. He was taken in a coma to level III of the Henri Mondor Hospital, where he was to die on July 22, 1973, from kidney failure 11 days af- ter the accident. The coefficient of carbon monoxide poisoning was not investigated, but the proportion of car- bon monoxide in the blood amounted to 40 milliliters per li- ter, approximately corresponding to a coefficient of carbon monoxide poisoning of .16. In this case, then, carbon mon- oxide poison was not the cause of death. Among the 122 victims found on the ground, the blood was examined on all but two of the bodies. From the 120 other bodies: —16 showed a CO poisoning coefficient under .50 —11 had a coefficient ranging between .50 and .60 —93 had a coefficient equal or over .66. It is usually thought that a coefficient of .66 is fatal. Thus, out of the 120 bodies collected on the ground whose blood was examined 78% showed a carbon monoxide psoning coefficient equal or over 66%, and death must be cur. videred as the result of carbon monoxide poisoning. However, 9% had a coefficient ranging between .50 and .60. For them, the probable, but not definite cause of death may be considered as being carbon monoxide poisoning. For the 13% whose coefficient of poisoning was lower than .50, carbon monoxide poisoning cannot be excluded as the cause of death. In fact, KOHN ABREST had pointed out fatalities where the coefficient did not exceed 20%. The analysis of escaping combustion gases from samples taken in the cabin revealed, in addition to a substantial amount of carbon dioxide, the presence of carbonic acid gas, chlorhydric acid and fluorhydric acid. The presence of the latter two acids, in contact with the nasal and laryngeal mucous membranes, causes a reflex 69 characterized by respiratory failure and decrease in cardiac rhythm. This breathing failure, a veritable reflex inhibition, is the result of a peripheral stimulation of the area innervated by the trigeminal nerve and the upper laryngeal nerve. Therefore, death would have been caused by inhibition. It would have been helpful to know the seats occupied by the passengers in the plane and to compare this information with the results of the blood analyses. Given the circumtances surrounding the accidents and the priority which had to be accorded to saving the lives of the survi- vors, it was impossible to observe the recommendations specified in Chapter 9, appendix 9 of the ICAO’s manual on airplane accidents. It is not possible to determine the exact seat occupied by the victims at the time of the crash. The results of analyses performed on the bodies of the six crew members—other than HELENO SALVADOR—who died in the accident are as follows: 1) UTERMOEL, second pilot The coefficient of carbon monoxide poisoning was .78 and the proportion of carbon monoxide in the blood amounted to 140 milliliters. The investigation reveals, however, that he was in the rear, in the passenger cab- in, next to stewardess ELVIRA STRAUSS. 2) DIEFENTHALER, mechanic The poisoning coefficient was low: .37, and the propor- tion of carbon monoxide was 90 milliliters. It is also known that he was standing in the cockpit and that he suffered a brutal shock when the plane land- ed, the top of his skull being torn away and causing his death. 3) MASCARENAS, Edomar, Steward Coefficient of carbon monoxide poisoning: .48 Proportion of carbon monoxide in the blood: 100 milliliters The inquiry did not reveal his location at the time of the crash. 4) BALBINO CARVALHO, Steward Coefficient of carbon monoxide poisoning: .66 70 Proportion of carbon monoxide in the blood: 130 milliliters The body was found in the first-class gsiley and re- moved by the firemen through the forward starboard door. 5) ELVIRA STRAUSS, Stewardess Coefficient of carbon monoxide poisoning: .78 Proportion of carbon monoxide in the blood: 140 milliliters The inquiry established that she was in the rear of the plane, in the tourist class cabin. 6) HANELORE DANTZBERG, chief stewardess Coefficient of carbon monoxide poisoning: .66 Proportion of carbon monoxide in the blood: 130 milliliters. The sole surviving passenger who, seating in the tourist section, had followed chief steward GALETTI to the cock- pit, was found in the first-class galley when the plane was evacuated; his name is RICARDO TRAJANO. He suffered from burns of the respiratory tract and from tegumentary burns, especially in the lumbar region. He was taken to Professor GUENAUD’s offices at the Mondor Hospital, and returned to Brazil after seven weeks of hospitalization. The following crew members had only slight injuries causing no permanent physical damage: ALVIO BASSO, CLAUNOR BELLO, ZILMAR DA CUNHA, GALETTI JOAO, COELHO, TERSIS, PIA ANDREA. 2.14 The Fire Since this was a cabin fire, it seemed useful in this sec- tion to examine the statements of the survivors and to es- tablish insofar as possible, a chronology of the facts based on these statements. The discovery of the fire is well documented, since two of the stewards who were there survived the crash. MASCARENAS (deceased) was in the rest room corri- dor, TERSIS (survivar) was straightening up the galley, CARMELINO (survivor) was seated on the fold-down seat near the rear passenger door. 71 A woman passenger exiting from the port-side rest room was heard to say, “I almost died in there”. MASCARENAS and TERSIS went over to the rest room. CARMELINO got up and looked. TERSIS saw white smoke descending from the ceiling of the rest room in the corner near the mid partition. The two witnesses saw no flames. TERSIS and MASCARENAS went back toward the cabin. TERSIS cut off the power for the rear galley, while MASCARENAS grabbed the fire extinguisher which CARMELINO was carrying back with him. CARMELINO then went toward the cockpit to alert the cockpit personnel. CLAUNOR (survivor) was seated at the mechanic’s posi- tion. He confirms that CARMELINO came in to say that there was smoke in the rear rest rooms and that they should go look. CARMELINO returns toward the rear with DIEFEN- THALER (deceased), the second mechanic. It is probable that after MASCARENAS emptied his extinguisher he en- tered the cockpit, since GALETTI (survivor) points out that he was informed of the incident by MASCARENAS who was holding an empty extinguisher in his hand. GALETTI and MASCARENAS joined DIEFEN- THALER and CARMELINO in the rear. At that time, the smoke did not allow access to the rest rooms. It appears that DIEFENTHALER was the first to re- turn to the cockpit to get a mask and a tank of oxygen. During this time, the smoke continued to advance: it en- tered the tourist cabin. The stewards and chief steward tried to reassure and calm the passengers. GALETTI returned to the cockpit and warned of the se- riousness of what was happening. All survivors from the cockpit except CLAUNOR state that they learned of the incident from GALETTI. It appears likely that the first an- nouncement made over the frequency corresponds to GALETTI’s intervention. According to the sequence of events given by almost all witnesses, it was at this time that the rest room circuits were broken. CLAUNOR says 72 that one of the circuit-breakers was already pulled out. He re-engaged it only to have it pop out immediately after. Stewardess ANDREA (survivor) who was re-applying her makeup in one of the forward rest rooms, exited after the lights went out. She then saw CARMELINO wearing an oxygen mask. We know from CARMELINO that DIEFENTHALER helped him put on his safety harness so that he could go and open the tourist cabin wing emergency exits. (In order for DIEFENTHALER to have suggested this, it is certain that the plane was depressurized). At the same time, ANDREA saw that the smoke was starting to penetrate the first-class cabin. Statements from witnesses reveal that the smoke, which progressively invaded the rear of the plane from the rest rooms to the last rows of seats was white. The smoke front appears to have advanced regularly, turning black. The statements from witnesses tend to re- veal that the black smoke appeared on the cabin ceiling al- most simultaneously in the tourist and first-class cabins and that it advanced not only horizontally but also in the direc- tion of the floor. 6 ica ae GALETTI returned to the cockpit; he described the rap- id and catastrophic development of the situation. This an- nouncement by GALETTI presumably preceded the message from the crew of “total fire on board”. It was approximately at this time that CARMELINO re- turned to the tourist cabin. Despite his mask he advanced with difficulty, since visibility was zero. He saw three flashes occurring in the back of the plane. The blast threw him onto the floor. He returned toward the front. General agreement among the survivors reveals that it was on the second entry of GALETTI that the smoke could be seen in the cockpit. An emergency descent was made while, according to CLAUNOR and FUZIMOTO (survivor) the plane was depressurized. The crew put on masks and goggles. It was apparently at that time that DIEFENTHALER cut off alternators 1, 2 and 4. The smoke rapidly became thicker in the cockpit. The pi- lots state that they opened the side windows when it be- came difficult to see the instrument panel and that they made the decision to “crash land” the plane shortly thereafter. 73 It would not appear, according to witnesses, that opening the side windows improved visibility in the cockpit. The pi- lots landed the plane using VFR, with their heads out the window. At the time of the crash, there were nine people in the cockpit: —FUZIMOTO, in the left pilot-seat —GILBERTO, in the right pilot-seat —ALVIO, in the observation seat —ZILMAR, in the navigator seat —CLAUNOR, in the mechanic’s seat —DIEFENTHALER, standing behind CLAUNOR —ANDREA and GALETTI, in the middle of the cockpit —CARMELINO, against the cockpit door. When the plane came to a halt, the fire was contained in the fuselage. According to one of the witnesses on the ground, a few minutes after the plane stopped, there were flames under the fuselage, fully behind the port side, envel- oping the skin on the outside. There were no flames visible on the top. The roof was pierced first to the right of the base of the fin. The explosion of tank 3 seems to have occurred at this time. A ground witness who is an Air France B-707 steward arrived on the scene and described the incident as follows: The inside of the plane slightly behind the wings was on fire. This was not a violent fire but rather a silent combus- tion. The smoke was extremely thick. The rear part of the roof was already destroyed. The fire advanced slowly for- ward without, however, increasing in force. The first fire engines arrived on the scene at 14:11 UT, 6 to 7 minutes following the crash. The fire was completely extinguished at 14:50. It broke out again in the luggage compartment, but was quickly brought under control. 2.15 Survival The forced landing was fully successful. It was possible to survive the accident from the standpoint of accelerations undergone when the plane travelled along the ground. Only second mechanic DIEFENTHALER was fatally injured 74 when the plane crashed, since he was standing, unsupported and unharnessed. It is, however, noteworthy that except for the occupants of the cockpit and two members of the cabin personnel who found themselves under special conditions (TERSIS and COELHO), no one was able to escape from the plane on his own, even though all exits remained completely utilizable. Of the nine persons who were in the cockpit, five had oxygen masks. Although tests proved that the opening of the side windows caused smoke inhalation, it also caused turbulence which was beneficial to those who had no mask. TERSIS, seated near the forward passenger door, pro- tected his face with a damp cloth. COELHO, seated near the forward galley door, used the portable breathing appa- ratus left behind by CARMELINO and which he had found when freeing the access to the galley door. In the cabin, no exit had been opened. Voluntarily, in the absence of any instructions, the oxygen masks had not been released. The condition of the occupants of the cabin when the plane came to a halt can be evaluated with the aid of sever- al statements by witnesses. Among those persons carried off by the firemen, i.e., those who suffered from the effects of the smoke eight to ten minutes more than the first, it was possible to revive two out of three. Only one of them, however, survived. In the forward area, where damage caused by smoke was slightest, there are no apparent signs of attempts to escape. Those crew members (HELENO, BALBINO) who were near the doors used by TERSIS and COELHO and who were quite familiar with the layout of the plane, were unable to exit. It is therefore quite probable that the occupants of the cabin were quickly powerless to react and that they were unconscious at the time of the crash. It is likely that most victims died only after the plane had come to a halt. 2.16. Expert Evaluations 2.16.1 Examination of the air outlet openings of the fuselage The ventilating air escapes through five openings: 75 —two permanent outlets, one forward and the other aft, which drain off fumes from the galleys and rest room odors. They are equipped with a venturi for lim- iting the flow rate when the differential pressure is high. —two outlets coming from the discharge control valves which regulate pressure —one cooling air discharge opening from the radio installations. The Board has made the following observations: a) A substantial track caused by smoke and which rapidly corroded, can be seen at the exit of the rear permanent outlet. An analysis of the corrosion in this trail showed that the metal had been attacked by chlorhydric acid. The inlet and the venturi were immediately taken for an analysis of combustion deposits. These units were useful in that they had not bee [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0452%3A04. Public record. Not legal advice.