Petition for Writ of Certiorari — O'Bery v. United States

Supreme Court brief1967

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v.Drigted States: 346 U:Be0Si id lici) 28

: Daeg Gniléil States; 872 BAG 194i v2 17°

- 8 Eastern Airlines v.Union This Céi, 223 F.2d :

oe 62, . affirmed sub; nom. “United! . States: v.

6 Union Trust Co., 350 US.907 21 81.. 1g°

Graver Mfg. Co..v.'LindéC65 386 U.8.271... - 29

Hall.v,. United States, 9&P2d69I21-. - 14

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! he Solicitor General, on: behatf: of the'/Unitea

-fdbtesh ‘of ‘America,’ prays that a writ of certiorari

: ‘issue to review: the judgment of. the. ‘United. States

Court: of. Appeals ‘for’ the: Second Cireuit.. eer be-

came final on Mareh 30, 1967: i Mleri tits thet

ormirome meow |

The opinion of. the court, of appeals (App, infea,

Pr. Ja)-", 48, reported: aud, nom. Ingaaham y

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tion for. rehearing was denied on a 30, no

‘By order dated ‘Juné29; 1967;°Mr. Justice Harlan

extended the time to file a” petition for a writ of ©

' eertiorari to and including August 26, 1967. The juris-

diction’ of 'this ‘Court: is invoked. ‘under: 9 U.S.C.

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Cat (SUESTIONS 3 PRESENTED

On Novemtiet 30; 1962; Eastern’ Air — ‘ight

512 crashed while landing at Idlewild Airport. In this

3 suit “against © the’ ‘Cnited® States‘ under ‘the’ Federal

‘Tort’ Claims ‘Act for damages Sustained as ‘a result _

of that accident, the following questions are presented : |

i: Whether the: misrepresentation exception of the

“Federal Tort ' Claims: Act, /28 U.S.C. 2680¢h),' pre-

- eludes |the imposition of hability on the United States

bi ‘for the failureiof a Federal Aviation Agéncy (FAA)

, air traffic controller to report certain weather infor-

mation to Eastern “ight 512... eon

2. Whether, under the applicable FAA regulations,

FAA Aittrafie ebtitrolléts' were’ required''té inform

the’chew Of Wabtern “fight"'512 of !a’ quarter-mile

~chalig in Sirport visibitity even thongh ‘the’ visibility

"Pertidined’ above “the'‘tininium’ for’ making a anding

‘lapprdaéh?"! ai (0S og ovins .qgh.> Ano. we to

oo) So Whether, in-any event, the failureito. teport the -

Ghatige’ in 5 sag could be abehiied pit 3

cause of the octane,

, she Por | Part es 6, ibaa), -

* mig ine witils

et,, 28,,.

Oh Get provi iia eg Mibtiog Xo. &

- $1346(b)- Subject: tothe. proyisions of chap-

£bl! files 171; of-this title, the district courts, together

uh 49° with: the ‘United ‘States: District. Court: for the

A Wo wine ‘of ‘the (Canal Zone- and. ‘the District

es “Court of the Virgin Islands,:shall-have exclu-

““: ? sive jurisdiction :.of. civil: actions on claims —

against: the: United States; :for money ; ‘damages,

accruing on and after Jaruary.1; 1945, for in-

, jury or loss of ‘property, or personal injury or

, death caused by Taptbene or wrongful act or

, .pmissionof any employee of. the ‘Government

_y While_ acting within the, scope of his office,or

mnt ae ee eg es agit Desi ae

q : ; rivate spunea

| liable to the ‘ Suh ee it rdance wi a

i Taw “of ’the’ Place” ‘whist tie’ att or omission |

jf oeeurred: i olin Bods

p paibssceg tia oft boguiad soe woe pestsilt

oy $2680. Betéelptions. °° are \

“tiie Phe provisions of this shied thd seetion |

rt nae af this title, shall not applyito+

‘gilt Tobin FonLrovon ot teintsven bes Soiti. t

aT ay Any claim arising. root aes battery;

ott et falee im prpomnent; tales anys wndae tet

ae Cae

Mies Bt ge deceit, or. th th ua

So treet Aphis 7h 3: MHIIVOR gi b bie aA, ¢

the Pederal Mat Apa “Air Traftie’ Colittol :

Procedures ‘Matmat ‘provides _ pettingnt ‘part!

. §363.2' “At Joos ALO bib of! re official’ weath rt tie

oa ii ‘acid big bdsdad byt cbnithotherd “eheotieh

08 — ee and the ee |

eo. ee

, bilitge is reported: as:being: at. sabibiiniiie high- :

est “circling minima’? established for. the air-.

whee pra ilies weather —

As. By. centers as. ait of the: svhitioasd Clear-

Sit Kite ‘to all direraft~to which: the approach

~~ ‘learante is: delivéred: tnseétly to otis Pilot: by

“! o> the éetiter controler ;

_ 'B. By approach control favititics, to all air-

etaft atthe time of the first radio contact or as

soon as — thereafter * 8 Se,

STATEMENT

At 9:45 PM. on November 30, 1962, Eastern Air

_ Lines’ regularly seheduléd flight’512 missed the run-

Way

while’ attempting’ a landing at Idlewild (now John.

Ker ni 1edy ) ‘International Airport in ‘New York.

(Rite se -

i to means government’s s liability, both the district

- andthe. at Ci

: entirely, ie es that a, Federal, Aviation Agency e

it, xested their decisions

r did 1 not inform the crew of East-

3 eh i at a a, decrease in airport tower visibility ~~

from one mile io, threnquarem of «ile In so

‘i

5 i

grounding its detichias the 'S | Pireuit’s holding

is’ in’ ‘conflict with decisions ‘of other. ¢i circuits which :

have held that the misrepresentation exception. to the ~

Federal Tort Claims Act, 28 U.S.C precludes _

the imposition of tort. liability 1 upon the U nited States

for the dissemination of inaccurate weather. reports, In

addition, the court’s decision. rests on its reading of a an

FAA regulation as imposing a mandatory duty on air

traffic controllers to transmit this type of weather i in-

formation, a construction contrary ‘to. that of the

agency which promulgated the regulation. This case

_ thus turns both upon important considerations relat- -

ing. tothe scope of governmental tort liability gen-

erally—the reach of the misrepresentation exception—

"and, the allocation of. duties. between. the. FAA and

the commercial airlines i in a significant Moatter. of : air

safety—the reporting of. weather data, Unless, other-

wise noted, the facts as summarized. are_ag-found by

the ¢ourts below,. |

The flight. Thee, Air Lines’ flight 512 « on LN ovem-

ber 30, 1962, was a DC-7B aircraft on a regularly

scheduled flight from Charlotte, North Carolina, bound —

for Idlewild International Airport, in New York, with

forty-five passengers and ‘six crew. ‘members_aboard

A(J.A,.1291a). En’ route’ ‘thi’ ‘plane’s: érew Was in’ gon-

- stant ‘radio. contact.with Eastern, Air, Lines’ own, sta-

\tiens, and was: receiving information abotit: perenne

at!’ Idlewild’ from’ Eastern’s weather ‘sta stat tions’ @: AL :

1299a), Not. later. than 8:22. that. that,.evening, ;

- flight 512 was ‘alerted: to fog conditions at ‘Idlewild —

Airport (Fa. bares ‘meso 9 an! ns

: ey, >? dahon pes

tit} fj ; + Es Ay £5; 4 Fite asgyy bRid?

“pla ‘both PAR Fogle” ‘aud “Bastétl’ Air

| Lines instructions, unless certaih ‘mirlimum coer

wa ic at an airport ‘4 commercial airliner

eo ned, , prope at Vie

: mums were a a lingo 200 feet With i viatyo¢

one-half mile (App. 6a; J.A. 1294a). Several’ Basterti

Air Lines’ ‘officials: testified’ unequivocally * that, where 7

7 those 1 minimum weather conditioris were met, it Gis the

company’ ~ policy’ to. attempt a landing and that’ its

pilots ° were expected. to make an approach to the rut!

| way and either land ¢ or execute a “missed approach”

At 8:45 P.M.’ Eastern’ flight 512 entered the’ New

York area where the- Federal’ Aviation’ Agency ‘Air .

Route’ Traffie Control Center’ (ARTCC) informed ‘it

of “a pretty ‘bad’ fog’ ‘on thé airport” and of “delay”

in’ ‘landing (.A 1300a). Flight 512 thereupon eritéred

the Idlewild ‘“holding’* pattern over Sandy Hook, Néw

Jersey (App. 1313a). During the next three-quarters Of

an hour, flight 512 was regularly advised. by ARTOO

that aircraft were’ attempting to land at Tdlewild fiit

that a number Had been required to execute * ‘missed

che (ibid. ), and that the delay would be indet*

Bil?

Pir “Beg ay! Ba, ote la 208, 198, beau seabed

Bie mpertlsbeoya bene Reve coment ot

most} be: familiat.; To execute , this. maneuyer,, the, Pilot. :ap-

wart Only sie le Rie of a sit Se Bp-

cata ED

f to land. Tn’ the ‘case of’ the’ four ©

r ven DO-7B, ‘those landing ‘thihi- :

- Anite due tothe unfavorable weather conditions (sbid.),).

Finally, at'9:23:P.Mi, flight 512 was directed: to eon-

taet;\Idlewild approach’! in preparation fofianitistrn-.

ment landing’ system ' (ILS): approach :(sbid.)./") « . :

Lhe mstrument landing ‘system: (IL8). “TLS72 -is ee

a system of electronic devices whieh assist the landing. .

of, aireraft under ‘conditions: of: ‘réduced: visibility. |

pilot. lands the aireraft visually, not: by. instfnmernts.—

a. ILS. serves rather as an-eid- im aligning the approach~ :

———ing-aiferaft with the! runway axis-and in guiding it

involved in this ease, that ¢ritical point ‘was. at an

altitude : of -200 ‘feet and one-half mile: of visibility

' (9+As 12940). In other words, the pilot may not-de-

sepnd below 200 fect, unless, at a distance of one-half

mile from the.end of the runway, the runway’ lights

are: clearly visible (ibéd.).*’ It i8' not’ disputed that

the, responsibility for making the final decision

whether to:land after.an ILS approach has been com- _-

pleted ests ehtirely on the pilot in command of the air-

FRA SI stent’ olmak ee ae

, The. ALS (system, itself, consists, primarily of; a

“localizer beam’? aligned -with the center ‘lite of the

“tetrnrriio by ajal ls rhb BOUT oly ee W TOW Od MYL ti10°) .

As “tnissed approach”, ‘6, #, Foutine maneuver which: canbe

made. succeasfully, from, as, low. 98,50; or, even . 25 - feet, in.

DOB (App,,7a; J-A. 12958) Fane note Sy. supma). i038 eannl

runway inousé:and-a' glide slope, which’ provide ‘the

crew with: guidance: up ‘to a:point! about one-half ‘mile

from. the: eae ‘of, the, runway. ieee

SAME pibtabeniin etatinn’a Se aeaor-omun

beak, distance of five to eight. miles from the end-of

the irunway;: andthe controller’ then: issues ‘an : ‘Apr.

proach ‘clearance (J:A. 1298a). The: pilot then: ré-

sumes: full : ‘navigational. eottrol of - his: aircraft; ale

though a controller continues to monitor the plane to

effect ' separation between that flight and other known

traffic (JA, 1293a~1294a).*' By using instruments in -

his. cockpit, the ‘pilot: then guides the aircraft down

along: the slocalizer, beam. and. ‘glide slope | until: it

reaches the: “outer marker”. A signal both audiblesand

visible tells: the. pilot when this point has been reached

¢ébid.) At) Idlewild Airport, ‘the outer markér is 2.7

nautical miles: beyond | the: threshold of ‘the runway,

mek picoat censierit at an ee af eats 14 feet. .

(ibid). - eet tality 9; L635 th dds

Wiki tr rae ‘pict is maintained by variois’ categories

pi sti paucm these in the air ‘traffic’ ¢ontrol

Re vnpsants the: local epntroller,.and the

oni Tn the present case, +h ee New w York center *

rode ‘sepatation’ to. Kustern ‘flight | bi. upto and dut-

~ ing/<part)of the’ time: it: was ‘in’ its: holditig: pattern.’ Then; ti

apptoach controller took over and provided. separation until the

flight had intercepted the ILS approach, system,

given. an approach gt Ran Thereafter, the wl

ok apap morale

“ae ‘

2 as . a

. 5 eee. , ’

+/\ As the ‘pilot: continues ‘down the gidé" path guided —

| ~ ‘dy ‘his instruments, another ther visual and ‘audible signal

| _ @pprisés “him. wher he passes: the'“‘middle marker,”

six-tenths of.a mile-from:the runway end, and when

_ the plane is at dn altitude of about 209 feet (JLA.

12948). At this point, as the district courtinoted, the

pilot ‘must direct his vision outside the eoekpit and

- deterniine ‘visually if his ‘airplane ds ina proper po-

_ Sitlom) to’ land: (ibid.): Assoeiated with: the mninway

_ ave white, high-intensity approach lights, redicontrast

lights just prior to the runway thteshold, green lights |

at the threshold, and ‘additional lights: ‘Outlining: its

| path (J:A: 1293a). As notéd: previously, if the: pilet

_ annot, see.the runway at the “middle marker” or

" determines ‘that he isnot propérly--alignéd with. it,

he may not land but, instead, is required to execute -

a ‘pull up’’-or “missed “approach” maneuver (JA. |

OD SiG ses

is that/of the FAA “approach controller” Ti addi.

- 40° provide’ certain weather information xinder spedi-

_ | fied \conditions..Im particular Seption .265,2 of. that

“3 . 40

: ‘mitted #4) *: [bly approach: centrol: facilities? to" all

‘aineraft ‘ab: thé time: of: the (first radio: contact: ‘or ‘as

‘s00n ‘as: ‘possible thereafter:.? #97 (FAs 1312aiy" ema

phasis added). This. regulation, according to the ui-

Sontradicted testimony: of ‘several: FAA officials, was |

not intended to obligeiapproach controllers to report

: all: changes in ‘visibility tothe air traffie which they

were handling: Rather, they testified::that, after the

es mandatory initial weather transmission; thé regulation

- ‘required the..controllers: to. relay: only those visibility

| changes which: necessarily had a bearing on a'plane’s

_ ainimum) landing: requirements. . Visibility | changes

"other than those transcending aircraft minitiums could.

also be-tranamitted if.time.and:the: pressure of con--

“trolling sgperrcplanepeereanntrigs: the controllers to do 80

safely? is}. besinpox ai be:

At 9:24..P,M."on,, the. nigh. in >-eunsiiin Be stera

flight 512 contacted FAA Approach Controller, Ket-

terman, who, promptiy,..gave, the crew. the requisite

’ weather. information; (J,A.1313a). At 9:30.P.M. Ket-

texman informed flight 512 that visibility had, dropped

to-ane:mile with ground fog: (tbid.), At 9:32:49 P.M.

the) control. room eoordinator. where .Ketterman was

stationed, ammonnend, orally; that visibility, had’ de

ss an 5. tn ty 70-40, t, 4 oD To the

aa Ee 3 : * ;

éife hebienet: 4.4 Sess y

and. did: not~ennourice any. weather, information, bus

‘concentrated on determining whether the flight path was

‘clear of traffic ahead of the landing plane: | l297 dea brr

just .,a; min and: half before ;fight 512.5, (Fids

‘0p At 9:45: P.M, ihowever, fight 512. passed ding,

| onally..over, the, xunway' threshold and, touched. down, 3

«Off the runway, 3,460. feet; beyond. that point.and)423

| ita left of ‘the runway center line. It iat ‘ome

to tekt' 4,360 fect from the ‘beginning of the runway

atid ‘Sortie G10 feet to its left (App: Ba; JA. 12920); «

2 “Hour surviving: ‘passengers, Seasoned: ‘air oni

ae (indluding‘a licensed pilot: who owned his: own’ plane);

> Confirmed. the misatigned: approach of fight 612

(App. 89a; AL 1300a-1901a). "They testified: that, de-

spite the fdz conditions, they could'séé the tunway lights .

from the plane and even the paintéd runway markings, °

that they saw that the airctaft hiad lowered its landing 3

gear, that it passed over the red lights'just before the

. threshold of the‘runway, that its approach vas angled

about’ 20 degrees’ tothe left of ‘the runway axis, and

that the course was not: corrected before! impaet (J.A.

13000-1303a). The passengers: also. reported thatthe

- approach ‘itself was ‘smooth “and: that ‘no: turbulence

had ‘Been enéoukitered | (ibid.):: ‘One surviving stew-

ardess testified: that: dhe had’ heard the sound of.in-

creased power being applied to.the engines just before

inepact (F.A/-13038), but hone of the passengers .re-

ported any chitige ‘in: thé direction’ or' altitude, of ‘the

aircraft. Examination of the wreckage’ revealed that

the landing gear had been retratted but that sufficient

power to!exeetite a missed approach’! maneuver. had

‘not been: applied ‘to thdiengines (J.A.. 1297041298).

"We dedieions below) A tter'a trialon the isene-of lia

bility, ‘the: district court found both’ Hdstern atid the

Sy Sraaah an swank Wien ee

1g12adBtGa)., The : netiiées of RO

3 gence:was premised solely. upon the fact that the FAA

air. traffic: controllers ..did not | advise. ‘Baster, flight

: Sk8 of the redubtion in:tower visibiity:fhom:one raile

to three-quarters of\a mile... otiy iy! teeadenh dads

~The court of appeals upheld the judgments against ;

both defendants’ ‘(App: 1a). In-so doing, the Second

_ Cirenit rejected the government's contentiow that the

“‘misrepresentation exéeption” to»,the Bederal Tort -

_ Claims Act (28 U.8.0:; 2680(h)) barred the imposition

of tort- liability on the United States onthe basis of

an inaceyrate weather report. The court ruled that the

misrepresentation exception was. substantially . con-

fined ‘by ‘this’ Court’s decision in United States v. -

Neustadt, 366 U.S: 696, ‘to cases involving business —

déalings ‘of’ a financial or commercial character. The

eoutt ‘of ‘appeals ‘also rejected’ the FAA’s’’ ‘uncon-

tradicted interpretation ' of Section 265!2° of.- ‘that

iigency’s own Air Traffic Control Provedisres Manual

and ‘held-contrary to: the agency's tindérstanding—

that Section 265.2 imposed a mandatory duty on FAA “¢

Be controllers to advise approaching aircraft of visibility

Changes, like the one ‘here, even though such ehangés

dé not affeet aiteraft landing tninimumis. Finally; not-

withstanding the evidence’of four survivitig witnesses

i Of ight'612 that the ninwey sins i fact clentty visible

hy Fized by t ‘ean bac J: Dansba.

‘TBR2a); a5 the Stistant tial, was: limited to the vi liability

reste} is dere, of Se : ompletign

15s ag) blo cepasip: fistori”) stat ailt weal) al cg

al s ; mE ¢

hetintS od} teniann tive » afin OLE ob (Ad) O80E OD.

+a»

from the’ plane'as it landed, the undisputed faet that

the pilot‘alone was responsible for executing a ‘‘missed

_' approach” maneuver if the runway: was not visible to

. him at’ one-half: mile, and uncontradicted testimony

that Eastern pilots were expected by their employer

‘to attempt an approach so longias visibility: was above

the half-mile minimum, thé Second Circuit held: that

the FAA: controller's failure to reportthe drop: in °

visibility ‘trom: one..mile to | three-quarters of a: mile

was a proximate cause of the accident; =. =...

_ * pigsisoms For GhawrnG THE WRIT

.. While. opening the United States to. tort liability

based on the. negligence of: federal’ employees, ,the

Federal Tort Claims Act preserves, in 28 U.S.C.; 2680,

the government’s immunity from suit on certain types

of claims. In particular, Section 2680(h) excepts from

the jurisdiction given to, distriet courts under the Act .

“any . claim . arising..out : of: * * “;misrepresenta- _

tion; *.." *.!, This. provision. has. beens.construed.,,by

this Court, and. other courts to. preclude. suit against -

| the United, States.:based, on. negligent as. well @3,,0n

deliberate 'misrepresentations, and for failing to. pro-

vide information, as, well: as. forgiving maecurate in-

formation, See, e.g, United, States v, Neustadt, 366

U.S. 696; Hall v. United States, 274 F. 2d 69-¢0.A.

10), Clark v,:United States,.218 F. 24.446 (C.A..9); |

National Mfg. Co. ¥.:United States, 210. F. 24.263

(C.A.'8)} Jones v. United States, 207 F. 2d 563'(C.A.

2). In Clark, the Ninth Cireuit squarely held that 38

U.S.C. 2680(h) does not allow suit against the United

: 15 :

- States for damages caused by the negligent faihire of |

government employees to disseminate accurate weather

information. Other courts have reached the same con-

- elusion. See National Mfg. Co. v. United States, 210

Py pa 263, “275-216. (C.A; 8); Bartieivi United States,

216’ F. ‘Supp. 10,'20-21 (W.D. La.), affirmed’ without

reaching the question,’ F.2d 754 (0.A.'5), certiorari

denied, 379’ U.S. 852;¥Carrier v. United States, 369

BY 2d: 322 (C.A. 5), certiorari denied, 386. U.8.: 1027.

In the case at bar, the Second Cireuit held the gov-

ernment liable solely because an FAA employee: rep-

resented the weather as allowing one mile of visibility

_ rather than three-quarters of a mile. To avoid the ap-

‘ ‘parent conflict between this holding and the decisions

in Clark and National Mfg. Co., the court of appeals

relied on language in a footnote to this Court’s opin-

ion’in Neustadt. It read the concluding footnote to

that opinion. (366. U.S. at 711, n..26) as ‘limiting the .

application of the misrepresentation exception to cases

which involve’ “business dealings of a. financial, or

commercial character “with the government”. > (App.

24a), jand d thus i impliedly overruling the earlier cases and

| ngyexception inapplicable in the’ itistarit ¢ircum-

stances—and in a wide variety, of situations where it |

: has consistently been thought applicable. — :

‘That reading of Neustadt, we submit, is anwitriitia

_ for a number,of, reasons. In the first. place, the. main

body of the Neustadt opinion ‘cites with approval the

Ninth and Fighth | Circuit cases ‘applying the | mis-

representation exception. in iad +: RANAORIRERTA COR:

(i Pao ty ae bee i List teres Trier as itt? *

(i? enw 3g

‘text.’ Secondly, the footnote itself merely restates

‘Professor;, Prosser’s yiew that the -exception was

“largely” limited to such cireumstances—a cleat im-

Plication,-we believe, that the exception was not lim-

ited. ex¢lusivély to matters involving “business deal-

ings’. And;:of course, the question was not before. the

Court for resolution in Neustadt, since:that case in-

volved @ traditional’ commercial warranty: to which

the misrepresentation exception would be applicable

even under the restrictive view adopted by the court

tion. of. the, inf ip ipa, he Fourth Cirenit allowed

Fe suit, sath in état f the pabiodn ent assumes a duty and

pan Rae 17.

°° At least one’ other’ circuit has ‘declined’ to accept

the reading of Neustadt footnote adopted by the court

| below. In’ DeLange v. United States, 372 BF. 2d 134

7 7A. 9), ‘plaintiff’s argument’ was ‘identical ‘to the

ionale aecepted by the Second Cireuit—that Neu-

sdeide limited the misrepresentation exception to ‘inva-

sions of financial or commercial interests in the course .

of business dealings. Nevertheless, the Ninth Circuit —

ruled. that the misrepresentation exception in 28.

. U.S.C. 2680(h) barred recovery from the United |

States on allegations that a government physician had

negligently diagnosed and misrepresented plaintiff’s

illness.” Thus, the decision below conflicts, with those *

rendered by other circuits both befor and: after the

N eustadt decision and, in-our view, |is inconsistent .

with Neustadt itself. It is also obvious that the matter —

is one, of recurrent significance. |

“We of course recognize, as did the ere in the

Neustadt footnote, that many forms of negligent con-

duct involve-elements of misrepresentation. We-do not

argue that Congress intended to exempt the govern-

: ment - ‘from liability whenever some element of mis- |

representation, however slight, is present. Rather, we

think a fair understanding of the exception for ‘‘mis-

representation,” fully i in accord with the general pur-

‘poses: of the Act,. is that it precludes. suit against the

——

tion. even though government, employees had. been careless in

. their task of gathering and: promulgating the information for

. that appraisal. .

. % See also Hungerford v. United, States, 307 F.9d 99, 102-108

(G.A. 9); Beech v. United States, 845 F. 24 872, 872 (C.A. 5);

and: Btelnenenet v. United States, 202.F, Aceh Babs 338. iaiateia ).

- government, where the ¢laim arises directly from what.

is merely an oral. or written communication,” or con-

duet ‘usually thought of. as,.a\ substitute for. such,;om

the part, of a! government, employee. As phrased: iy:

Judge: Woodrough in National. Mfg. Co. v. United

States, 210 F; 2d at 276: “The intent. of the section.is. _

to exéept from:the Act cases, where mere ‘talk’ or fail-

ure to ‘talk’ on the part. of a government employee is.

asserted as the proximate cause of damage sought to

be recovered from the United States.” * That such‘an

implies that the information given in an earlier communication

is still accurate, as to whether the misrepresentation exception

applies. That kind of distinction was suggested by the district

court here (App. 58a), but rejected by the court of appeals (App.

22a). In short, we see no difference in kind between a situation

where a controller conveys certain information and then fails to

convey changes thereto, and'a situation where, at the later point;

States, 210'F. Wd at QT, ade oitte ai

.™ Properly considered, Eastern Air Lines v. Union Trust, Co...

291 F. 2d 62 (CAD.C.), affirmed sud nom. United States v.

navigational aid’ was negligently maintained, and did not involve

a doreblindia sieves tetnitions ‘communicative in nature. As a

result, the government: did not there assert the misrepresentation .

exception as a defense. a yore

-— F&F Meer

apiiroach may: not in‘all cases provide‘: clear and

easily: definable line! of demarcation ‘does: not,:in our

view;‘undermine its viability. Determining whether the.

misrepresentation exception: applies or not is, in close’

cases; at best a difficult problem. ‘The approach ‘we

suggest will at least provide a workable framework for

‘resolving this question; and ‘will; 'in'‘our view, be the —

one which best reflects the congressional intent.” At all

events, the scope of the misrepresentation exception, ye

and the proper approach to be taken by the courts i &

this regard, is a matter of intrinsic importance. Tn

our View, therefore, review by this Court i in the instant :

case i is plainly warranted.

“hy indicated above (supra, p. 15), we read the

| opinion of the court of appeals as adopting the view

that: the misrepresentation exception is essentially

litnited to situations where the communication | in

ayertion is, made in the context of financial or com-

. “38 Whatever the precise scope of the’ salsrapresentation excep-

peng ptyplar nua onscny hl ure cadigerven

por on pe Act inbonrbe the exceptions i in Section 2680(h)

a8 “clainis which relate to certain’ governmental activities which

aduld ‘be free ‘from the threat of damage suit’* * *.” S..Rep.

No. 1400, 79th. Cong,, 24 Sess., p. 33,. Hearings on egrlier bills

containing similar language support this understanding of the

exceptions to the Act’s coverage. See, ¢.g., Hearings before the

House Judiciary Committee on HR. 5378 and HLR. icine

ani are ss ip !

, FB |

: mercial dealings view:-which gives rise to! conflict

_ and which’ we believe: unsound. However, ‘as ‘we! ob-

. served! (note 9, supra), there. is. another. possible

thread to’ the court’s -opinion—a suggestion that ‘the

defense is available when the essence of the com-

muyication. is merely to convey information and

nothing more, but unavailable when the communica-

_ tion is*ineidental to. some operational. activity. or reg-

ulatory function which has independent purposes.

Certainly, to cite a simple example, we would agree ~*~

that the government could not sustain a defense based

upon the misrepresentation exception when the driver

. of a postal truck gives an erroneous hand signal —

which results in an accident—a situation in which

the communication is obviotsly ancillary to the act

of driving the vehicle. We question. whether this

_ Somewhat broader approach accurately reflects the

ratio decidendi of the court below. But even if the

opinion could be read in stich.a light, and such a reading |

_ is regarded as being reasonably i in accord with the con-

_ ¢ gressional intent in enacting 28 U.S.C. 2680( h), we urge >

that the ‘decision below nevertheless: reflects an ‘er-

roneous disposition of ar important question. The court

of appeals, we. ‘submit, has misconeeived the extent of

the duties assumed by the- FAA: and has misconstrued

_: the regulation which defines those duties. Ets: construt-

tion's plainly contrary to the settled ‘understanding of

hoth, the FAA. and the. air air. carriers, themselves. The

proper ddlineation of these duties, we need hardly add,

is important to the dgency, +6 the carriers find ‘to’ the

public,” t 29 90) 196

| The court of appeals resumed that) the: air traffic

approach controllers were required to report -visi-

bility changes to the crew of incoming aircraft, even

PETE LT NE IO IY Ie LD ILLITE LE OLE LO OL AI LOT

though. the changes did not. reflect a. drop.in. visibility —

aungeceptable levels, The court concluded that: this

duty, by Section 265.2.of the HAA Air. Traé-

fin Control. esiasidiinia Maa Liaiactadaia in. perti-

ehesexipone { » dy -

At setaltonns pean ‘official: pissin seat

care obtained by the controllers through routine -

. procedures and the ceiling and/or visibility is

_ reported as being at or below the highest ‘‘cir-

_ dling minima”’ established for the airport con-

cerned, a report of current weather conditions,

and subsequent changes, as necessary, shall be

, transmitted as follows:

at * te * gee iy

” 'B. By approach control facilities, to all air-

-@paft at the time of the first radio contact or as —

soon as posstle thereafter * * * [emphasis —

- added]. BEOTCE F

A series of FAA officials, shone testimonty is un-

contradicted, explained the agency’s consistent inter-

pretation of this regulation (see ‘note 6, swpra)—that

_ the’ italicized phrase in Section 265.2: makes it man-

datory upon approach controllers to inform incom-

ing aireraft only of changes in visibility which ‘tran-

seend the aircraft’s minimum. visibility for landing.

A drop in visibility of this character. necessarily -af-

‘fects a pilot’s authority to make a landing approach, for

‘the’ Civjl ‘Air Regulations: make’ it unlawful to com-

mene an ILS: approach when visibility goes below

_, @ speeified figure. w C.F-.R. (oo 1967 rev.)

§ 121.651 (a onio es | salen atlilen Mai Fhe

4 All te references to the Civil Air 0 ptiatababi are to ide

' currently in effect.:There is no substantial difference, for pur-

poses of this case, between the current regulations and those

ee ee ee ae a Ap ore aoe

ie a :

| Other wether changes thay sibdinaraapineatioies es

‘if’ the controller ‘sari dose’ ‘consistently: ‘with: the | pe

formahée of his’ primary duties. Thus, inthe nistar

case, the drop’ in’ visibility’ to three-quarters: ofa nile,

did not affect the Eastern Air Lines pilot’s authority to

take an‘TLS apptoadh, because his'aircraft’é minimum

landing visibility was 6tie-half naile.'Tn the FAA’s view,

thé air traffic cotitroiler was therefore not’éxpected to

report that change unless his mandatory ti afforded

him opportunity to do 90...

_ Acknowledging. that the phrase, “subsequent 7

changes, necessary,” in Section (265.2. of the man-

ual did no require the reporting of “all” changes i im

weather conditions, the court of appeals | nonetheless

substituted, its| own. understanding: of the: regulation

for. that of the* ageney.: In thé ‘Seeond Cirguit’s view,

_ that section required ‘the approach controller to re- ae

port. subseqitent weather ‘changes which, ‘ander, all

the. circumstances,” the crew jwould have nepessarily

‘considered important, im determining. whether, to land —

(Appi 14a)..And the court concluded that a drop.in yisi-

bility; from one: mile , to; threequarters,of ; a, maile,

.. though: inot' below. the ; half-mile’ ‘legal. landing, min-

-imum: for the incoming, plane, was’ such, necessary,”

Phenies bid) otooigds eit lo. ‘ilidixiy ai anh,s, *.

«The: governing; rule, -we.aubmity is stated, in, Bowles a

Wi Seminole Roel i Co.5; 825 WS:420, 413-414) (mp-

_ holding the Price: Administrator's, onstruction, of-his

own, fegulationi. over the differing interpretation

rag aera ymmaeep erm pea

sini (1962 rev.) part,40, OY oF 8 eeanerat Ber

> oo : fs", Bess 7 wf i ase

eenemeaiih fearagte hs $e GD SE PHL Sete OA Lees;

; geek ~e~w " es 2’ . Ly vs a | a . ci . ‘t

Ge PAST. ME ys SHIGG, .92823 i6a- 1 Poo

= 23 os

placed ag nit tthe dni Golde ad thet court ot :

git th dadt »{ CS) Go) SGGHSA @:ATVAD. FE)

tenis Since’ ‘this ‘inyo ives ‘tin ‘hal pant’ of tet il

fs A @ Veg iHiU a* Bont ‘fitist ‘necessar-

ag retiany Tookto' the administrative construetion of

ities, jithe regulation if the:meaning of:the-words used

»jot + + isin doubt. * *. *.[DJhe ultimate-eriterian is the

\administrative . interpretation, , which becomes

: patter controlling weight, unle ‘ath it is. Plainly

the Fegltaion

ore words oe ‘thes gulation and any’ relevant in-

eye terpretatioris 0 he Administrator. « ae

‘Bee “aldo ‘No orwegian Nitrogen Co.''v: ‘Tnited States,

O88 TS. 294, 325; Udall'v. Tallman, 380 U.S.’ 1, ‘16. -

‘Sinte’the FAA’s interpretation of its’own tegulation

. dniposing a Timited duty ‘on “ait ‘traffic ‘Controllers to

, advise aircraft of ‘weather changes is ‘neither’ inconi-

* Gistent! with the language ‘of the Fegniation’ for ‘eon-

ttaty’ to any ‘Btatate: ‘the court id uppeals shonld’ Have

‘deepted ‘that friteiprstaltionn: 0" D0 od Ho

‘6 ‘Morebver,” the” FAA'S" ti “of the: Héguldl

‘GOH G8 Consistent with the’ aMdeation SF respotisibitity -

- etWeen “the edthitercial ait dartiers and’ that’ agency

|. ‘air safety: rhatters: thé interpretation below is not:

_ Onder: the’ goveming ‘Civil Air’ Regulations, ‘the air

Cattiers have respotisibility for “operational ¢ontrel”

of aircraft, 4.e.,;fauthority -over:initiating, conducting,

or terminating. »o. fight” (14 OF R. §§%: jl,

‘The regulations goon to, provide that the,

“patchér and’ pilot shall, be ois Hiab a ma for De es

dispatch Tréleasé'of the flight (14 CFR: §'121.583(b)) ;\,

that the dispatcher shall be responsible for eens Ne

) \

‘ < 7

provides; ph 4}

24 ;

necessary information for, the safety of the flight’”

' (14 CFR. § 121.533(¢)(2)); that if the dispatcher —

believes that the flight cannot continue to. operate

Safely as planned or, released, the dispatcher is re- .

‘sponsible +for. cancelling or re-dispatehing;:it,/-(14

OF.R. '§ 121.538(¢) (3)); and that during flight time

_ fhe pilotin command “is! tesponsible for the ‘safety

of the passengers, crewmembers, cargo, and airplane”

(14 O.F.R. §121.533(4)). omar

More. speci ally, with respect to the, furnishing of

weather information, each air carrier is required: to

“notify its appropriate operations personnel” of “Do-

tentially hazardous. meteorological conditions?’ (14

O.F.R. § 121.539), And, whenever -eonditions. exist

which constitute a hazard to the conduct of safe oper-

ations, including runway conditions, it is the carrier, -

not the FAA, which has the responsibility for sus-

pending operations (14 C.F.R. § 121.551). oo

, The basic. function of the FAA. air traffic control- —

. lers, on the other hand, is to prevent aircraft collisions

' by maintaining traffic separation. through a system of

“elearanges.”’ The issuance of a clearance is based solely

on air traffic; it is not based upon weather conditions.

In fact, the FAA Air Traffic Control Procedures .

_ Manual prohibits a controller from denying a landing

' elearance for. Teasons of. adverse weather." Indeed,

.'Thé Air Trafic Control Procedures Mannal (Ple@ Exh, 38)

airport ‘traifie' controllers shall be ‘predicated solely upon

«(chen judement}:mqy, constitute,,eollision. hazards ,to, ai-

+ Bette ry” t0F oldianiape of Migle radate

the ‘ybatienienty” in undohiehwatebed "iat even! Hine ie:

ported’ visibility is’ bélow ‘an’ ‘aireraft’s ‘mininhium for

att instrument ‘approach Hin which ¢asé‘it is inlawful

for ‘the pilot to land’ (14 O.F-R. §121 56T)the air

traffic'controllers have no authority’ to’ deny’ # pilot

clearance if he wishes to attempt a landing’ approach.”

There is nd dispute ‘between the: airlines‘ahd the

PAA regarding this division of' responsibility. Indeed,

in recent congressional hearings on aircraft ‘safety,

representatives of the airlines and the Administrators

of the FAA testified that the FAA air traffic con-

trollers’ function was to separate aircraft and prevent

collision, whereas the responsibility for deciding if

take-offs and landings’ may ‘safely’ be ‘made‘in light of

particular weather conditions rests—and egreod’ con-—

tinue to rest—with the’ air carriers.” , |

Tn: addition, the court's ’ holding: increasing the |

responsibility of FAA traffic controllers for the dis-

‘semination “of weather changes ‘is ‘not’ consistent’ with

considerations of air saféty:'As iiotéd) the” ‘principal

ie eb cay in i Ree prions «| ase A a ts :

a clu @ positi aircraf in t

v i" pir a ihe ee imesh pit Oi the movement flight

“nid observed ‘Ot Kttiowt ‘vehiowhie! trafie~and temporary

ivd ‘ obistructions:on or immediately; adjacent to said: arpa, i

a iy Pteiast Exce forth, i esate lat 411.4 and .

: 7, denial 0 sm te i at to land or take off !

uit ym etn of roe a

F 3 3 5

SORIA gc es

tee on Interstate and Foreign Commerte, Sibcommittes on Publi¢

_ Health and Safety, January 8-10, 1964, 88th asym: se 2d’ Sess. 5 ag

timeny of General Seawell of the, ee

America ‘(representing all pe ap ), nes); Pp. 78-79 ; ttl

' mohy of FAA Administrator oe Hataby; ppl

‘\

26.

"fe mod?

flight 512 of sea ninibilits, canes, from . one mile to three-

quarters of a:mile formed the basis of the finding ,of

- government, liability, was providing traffic separation

services, for no less than 12 other aircraft during the

15-minute period he was handling that. flight, During | :

. this 15-minute, period, there were 236 separate ,radio

transmissions, between. Ketterman. and these aircraft.

ms, The, court’s. requirement that controllers report. visibil-

‘ity-ehanges the aircraft crew, would. consider important

a practical. matter, the , Teporting of all

the, already. heavy, duties placed. on controllers, ‘espe- .

cially. those at our busiest airports, with no compensat-

ing inerease in safe landing procedures. As we have

Pointed out, the pilot is already ‘under an obligation to

ma exeeute.a missed approach.if he cannot see the runway.

i at one-half mile ‘regardless :<fthe reported visibility

aiid ‘the aivline dxpecte hith't0 atterapt ait approach so

as minimum. visibility. exists, Thus, an obligatory

- Tequirement*on controllers to report all visibility

changes adds to their burdens. without any compensat-

ing ingrease in air safety. |

~Torbe: sure, the FAA might nadie Seetion 265. 2 by

deletiig the’ géneral language, “as necéssary,’” ‘and

instead spell. out. precisely what. weather . informa-

responsibility of air,traffic controllers is separation of

air traffic so as to, prevent, collisions. The proper per-

formance of this function is.indispensible to air safety;

- not infrequently an air controller has all he can.do,to

maintain traffic. separation. In this ery, ease, approach

’

> a .

eee eee eee SS Re ae a a a “

ara at tate ne Ann oi ile Re AA SN MRNA ARR

tion shall be, ziwn.feeBAsdeianws however, this the

result ‘of such, an. amendment, will be that, Jess_rather

than more weather information is furnished. The pres-

‘ent regulation, as construed by the agency, permits flex-

ibility, £ or controllers give the. visibility information

iz when landing minimums are. transcended: plus, addi-

tional. information when not under the press of duties

in comnection with their, primary, responsibility, of |

. separating aircraft. The language, ‘as Aecessary,””

ss p¥eserves a desirable degree. of flexibility. in. this. re-

gard..On the other, hand,,under a regulation stating ~-

' that visibility will be. given only when it transeends _

minimums; and that only - certain. other specified

weather information will, be given, the existing prac-

ticé whereby. controllers furnish. additional, informa-

tion: when ‘in their judgment they, are able to do so

may well be abandoned.

_ «The FAA. believes that the, present Séction 265.2,

_ as construed ‘by the agency, is a desirable regulation—

that-it is flexible and best’ méets the needs Of safety

consistently with the: ‘PAA role and capabilities. If

the ‘decision below is left : bed, the flexibility

of the “as necessary” pr ion carinot be’ preserved,

For. the Second Circuit has held. that it is for the «

. eourts, not the FAA, to decide: what weather. changes

dite “tiecessary’” and must be reported. Since the: FAA

has no way of knowing what a court, in subsequent liti-

gation, will decide was “neeessary,’’ the only effective

way of guarding against potentially staggering liability

will: be to padent more restrictive aia This, the |

« ’ ‘ ‘ - * ;

. .

agency is convinced; is ‘itddatratsid from the eenpaen :

‘ of air preys and to ~ avoided it penal

7 ve we have attempted 6 dinciinbbrste,: certiorari is

* warranted in this case because the decision below con-

fliets with decisions of other circuits in its ‘interpreta-

tion of the misrepresentation exception of the Federal

Tort Claims Act and misconstrues, in ‘a manner pre-

judicial to air safety, pertinent regulations of the Fed-_

eral Aviation Agency. There isan additional reason .

justifying this Court’s review; the holding below that

ane FAA controller’s failure to transmit / certain

weather information was the proximate cause of the

accident in suit is totally without foundation. |

We of course realize that it is not this Court’s gen-

18 While in this case the courts below purported to servalifate

only the FAA’s interpretation of its’ own regulation rather

than thé regulation itself, in fact, this amounts to an overruling

of the administrative jpolicy embodied in the regulation. We

think jit settled that ae intended to preclude examination

of the validity or propriety of administrative regulations in

tort suits against ‘the government. See 28 U.S.C. - 2680(a) ;

Reina. United, Baker, 244 US, 15, 33; Powell, v. United

States, 2338 F.. 2d 851, 854 (C.AS 10) ; Weinstein v. United

States, 244 F. 2d 68, 71 (C.A. 3): See also H. Rep. No. 2945, -

Tith Cong., 2d Sees., p. 10, pointing out: “Nor. is it ‘desirable

or /intended that the.* * * legality. of,a rule or regulation

should be tested through the medium of a damage suit for tort.”

To the same effect, sée.S. Rep. No. 1196, 77th Cong., 2d Sexs.,

p. 7, We vubuiit that ihe decisions below were not based‘on the

improper handling. by ‘thé air controller, of the operational

details of his job. Rather, the decision rests on the courts’

disagreement with FAA’s policy of not requiring the reporting

of weather changes of the type involved here. Section 2680(a) ~

_ of Title 28, properly construed, precludes a holding of govern-

_ ‘ment liability on this kind of basis.

eral seiictin’ to review factual findings concurred in

by two lower federal courts. Graver Mfg. Co. v: Linde.

Co., 336 U.S. 271, 275. The Court has not, however,

- applied that rule of judicial administration so*me-

_ chanically as to avoid ‘the task of examining the

' foundation for findings in a particular case.” Bawm-

gartner V. United States, 322 U.S. 665, 670. That such

examination is called for in this case, we submit, is —

made clear by the opinion of the court below. —

‘The court of appeals itself recognized that “the as-

serted liability of the government was based on the

claim that poor visibility was a factor in the crash

_ ** * (App. 2a). But, in holding Eastern Air Lines

negligent because its crew continued its approach after’

losing alignment with the runway, the court relied

heavily on the testimony of a surviving passenger who

was himself an experienced aviator. This passenger,

whom the court of appeals itself characterized as

“trained to observe details,’ “assiduously observed

the plane’s landing approach” (App. 4a). As the

-eourt of appeals also recognized, this passenger was

' able to see—and did see—not merely the runway

lights, but even the painted lines on the runway itself

(tbid,). Three other passengers testified to similar ob-

servations (J.A. 1300a-1303a). If the visibility was as

good ‘as these witnesses testified—and the courts ac-

_ cepted this testimony as the principal basis for holding

_ Eastern liable for a negligently effected landing

(App. 4a-5a)—then the same court’s findings that: in-

sufficient visibility caused the accident are not credible.

The portion of the court of appeals’ opinion deserib-

ing how well one on board the ie could see cannot

274548678:

- be reconciled with the portion holding that. the goy-

ernment employee’ 8 conduct proximately caused the

accident. The testimony of the surviving passengers

and the testimony - of pilots who landed on ‘the same

runway minutes before flight 512 demonstrate beyond

— doubt that the accident was not caused wed insufficient

Secondly, in deciding that the failure of the FAA ‘a

advise the pilot of the reductions in visibility from

one mile to three-quarters of a mile was a proximate

cause of the accident, the out of appeals reasoned

(App. 18a-19a) :

This information wovala have signaled to the ©

- pilot that a. missed approach might have to be.

executed. Indeed, as we have noted, the evi-

dence discloses that on the evening of the erash

-seyeral pilots were forced to execute missed

approaches even though the controlling Visi-

bility was reported as being above minimums.

However, earlier in the opinion, the court. pointed out

that while he was in his holding pattern, the.pilot of

Eastern flight 512 “was advised that ‘there was pretty

bad fog on the ‘airport,’ and that as a result ‘some

[planes] are making it and some are not’ ”’ (App. 3a).

At another point in its opinion the court stated that

the ‘‘crew was informed of the adverse weather con-

ditions which existed at Idlewild, and of the possi-

bility that they might have to divert to Philadelphia”

(ibid.). In addition, when the crew of Eastern flight

‘bI2 commenced its .a pproach, ‘the Captain. announced ©

to the passengers that they would “try” ai an approach

and would either be on the ; ground or would execute

a missed — and found to Philadelphia (J.A.

os $1 re

1109a-1110a). Moreover, as the court of-appeals stated

in its opinion (App. 7a), “the missed approach. maneu-

ver.is basic to safe flying and one with which all com-

_ mercial pilots must be completely familiar,” and -was

a procedure “well-known to the erew.’’ These facts, as

acknowledged in the opinion of the Second Cireuit,

- demonstrate that the pilot of Eastern flight 512 was

' fully aware of the possibility of having, to make a

missed approach at the time he commenced. his. land-

ing: They cannot, be reconciled with the court of

appeals’ reasoning that if the pilot had been advised

of the one-quarter-mile reduction in visibility, “this

information would have signaled to the pilot that a

missed approach might have to be executed”’, (App.

18a).

- Finally, as we deucibed above (supra,p. 9), the pilot

} of Eastern flight 512 was required to decide as he passed —

over the ‘‘middle marker’’—on the basis of what he

could see outside his cockpit—whether or not’ he

would attempt a landing. The Civil Air Regulations |

made it unlawfyl to land—and Eastern’s regulations —

forbade him from doing so—if at this point, one-half

milé from the runway and at an altitude of 200 feet,

the pilot could not-see the runway. And, as the Second

Cireuit noted, Eastern’s own witness conceded that at

this point the pilot had ample leeway ‘to “execute a

missed approach maneuver successfully (App. 7a). In

these circumstances, the uncontradicted fact that the

pilot attempted a landing makes it clear, we submit,

that the courts below were plainly mistaken in be-—

lieving that the failure to advise him of a drop in

visibility to a point not below Eastern flight 512’s

landing minimum contributed to the accident. -.

274-548-674

Thi vibwut tho ‘prom ‘of canes on the’ Oouzt; ae’ get

erally refrain from urging review in cases which only.

‘present issues ‘of ‘a primarily factual ‘character. In

this case, however, we think the two legal issues dis-

_eassed earlier plainly warrant the Court’s considera-

tion. In light of the internal inconsistencies in the

opinions of the courts below as to whether the govern-

ment’s conduct proximately caused the accident, the

3 consideration that many of the factors’ underlying

those: legal questions relate also to the issue of.“ proxi-

mate cause,” and the fact that the potential. liability

_ in damages here is extremely large,” we believe that a

. grant of certiorari to review the entire case, _—

the question of proximate cause, is merited. 9-1)

CONCLUSION eS

For the. reasons stated, the petition for a writ of

certiorari should be granted.

Hesnociealy, submitted.

_ THURGOOD ane

' Solicitor General.

Cart Earpiey,

Acting Assistant ‘Attorney puma

JouN C. |

: -‘Ricwagp 8. ane 0%

Avauer 1967. { | 7

- i ina aisle mes ale en

_ accident, to which the government has been found liable and

not entitled to indemnity, exceeds $15,000,000. |

fein

| APPENDIX.

States Court of Appeals for the Second

‘Bates Cir ait reer

_... Nos, 273, SD Urn, ea 1966.

(Argued December 13, 1966 ; Filed February id, 1967.)

Docket Nos. 30785, 30786

Grace A. Ixona, as Execura or tam Estate or |

' Pavt B. INGHAM, DECEASED, PLAINTIFF-APPELLEE

Eastern Ark LInEs, INC., DEFENDANT AND THIRD PARTY,

oe,

UntrEp STATES OF AMERICA, THIRD PARTY

_ DEFENDANT-APPELLEE

Grace A. Inara, i Wheowiier' ew tad Eatin ve

Pav B. INGHAM, DECEASED, PLAINTIFF-APPELLEE, and

Rrra*FREEDMAN, aS ADMINISTRATRIX: OF THE EsTATE

OF. re ae DECRARED, PLAINTIFF

. : ; ;

Unrmp ee OF America, ‘DEFENDANT AND THIRD

PARTY PLAINTIVF-APPELLANT :

: v. f

ine Atk Lines, I04:2 THIRD PARTY

_ as

“ .

2a a

Before: WATERMAN, Moore and Kaupuan, Cireuit

| Judges. :

- Kaurman, Circuit. J » ia During - he past. half

century we have witnessed the metamorphosis of air

‘travel from a pioneering effort to a mode of trans- .

portation. that is commonplace for millions of Amer-

‘icans. Yet despite the pheriomenal advances which -

have been made. in the technology of the industry,

* airplane erashes, often unexplained, continue to dis-

tress us.

-The present pai arose from a ilk crash which

oceurred at Idlewild International Airport (now Ken-

nedy International Airport) on the evening of No-

vember 30, 1962. Eastern Air Lines, Flight 512 (here-

_ after referred to as EAL 512), en route from Char-

lotte, North Carolina to New. York City, crashed

while attempting to land on Runway 4 Right, which |

at the time of the accident was engulfed in swirling ©

ground fog. Twenty-one passengers and 4 crew mem-

. bers.perished, while some 28 to 30 other persons were

injured.

Numerous separate actions. were filed in the District

Court against Eastern Air Lines (Eastern) under the

-court’s diversity jurisdiction, and against the United

. States.under the Federal Tort Claims Act, 28 U. S.C.

§ 1346(b): Eastern’s alleged liability was premised in

the, main on allegations that the crew of EAL, 512

failed to exercise due;care in operating the jaireraft.

and that this; negligence was one of the causes of. the

tragedy. The asserted liability of the government was

| based on the claim that poor visibility was a factor in

the crash and that a ‘substantial contributing and con-

current ¢ause of the accident: was the negligence of

the Air Traffic Controllers and the United States

Weather Bureati observer in failing to provide ac-

curate and up-to-date’ weather'information. ~_

The present actions, one. ceaitind Eastern and , ‘one fs

Haart the government, with each defendant .

third party claims against the other for: ‘indemnity,

were selected ‘as “test cases” to determine the issues

- of liability and the right to indemnity.’ ‘The parties :

waived) a jury, and the cases, limited to the issues of —

liability and indemnity, were tried by J udge Abruzzo.

After 19 trial days, the court filed its opinion in’‘which .

it found that the accident had occurred because of the -

concurrent negligence of Eastern and the government.

It also’ found that, neither defendant was entitled to .

indemnity from the other. The court properly: certified

these cases for appeal under 28 U.S.C..-§ 1292(b),’.

and we subsequently granted leave to Eastern and the

government. to .prosecute these interlocutory appeals. *

In order to unravel the rather. complicated issues

which confront us, we will first discuss. Hastern’s. lia-

bility, then proceed to consider the® liability of the

government, and finally examine both defendants’

claims that they are entitled to‘indemnity.

| RASTERN’S: NEGLIGENGB

1, THE APPROACH

‘The facts, as developed at trial, veal that EAL

512, a DC-7B four-engine aircraft, arrived over the

New York City area at approximately: 9:00 P.M. on _

November 30, 1962. The crew previously had been in-

formed that due to adverse weather conditions the. -

flight might have to be diverted to Philadelphia. While

in its holding pattern, the aircraft was advised that

“there was pretty bad fog on the airport,” and that

as a result “some bam are — it fomy some

_ are not.’’ ) '

Many " the plaintiffs in the thie: acticndiuilignell: stipall:

tions‘ agreeing to be bound: lease nro uy FI

present cases.

At approximately“9:37,, Approach: Controller ‘Ket-

terman, an employee of the Federal Aviation ‘Agency

(BAA); cleared EAL 512 for an instrument landing

system-(ILS)- approach to Runway 4 Right. Such

‘an approach required ‘the controller to guide the|air-

\ raft by radar until the plane intercepted a localizer

\' ‘beam, at which point’ the crew assumed full ‘navi-

\. gation of the plane. Poet otis Lite t! bot, pe

_It is an extraordinary circumstance that one of the

\ fortunate passengers who survived the crash, assidu-

-\ously “observed the plane's landing approacti, Such

~ eye-witness evidence, usually lacking in ‘airplane

erash cases, is especially valuable in determining

whether the crew performed in a negligent manner.

The witness, Frank Kolarek, who had occupied’ a

‘window seat in the rear of’ the plane, provided ‘de-

tailed testitnony dealing with EAL 512’s landing

approach. Tt was a coincidenda.that the witness was .

a licensed pilot who owned his own ‘plane. He also

had taken. over 100 commercial flights. A motion

picture cameraman by trade, he was trained to ob- ~

serve details and, indeed, did. Kolarek testified that

he saw EAL 512 cross Runway 4 Right from the

- left, at an’ angle -over the red lights which mark the

beginning of the runway. Despite the apparent lack

of alignment with the runway, the plane continued |

its fatal approach. Its position. was evidently not

corrected, for as Kolarek went on to testify, the

plane was not aligned with the, painted white, lines

during part of the time that it. was in its holding pattern.

Then the was turned over to Approach : Controller

guided it into its ILS approach, at which time

& Local Controller took over. P

he spbeenved: on the runway, but inatond: proceeded

at. anangle of 20° to the left of these lines...

-<Kolarek’s, damaging ‘testimony was. not the. only

evidence «indicating that the plane .was improperly.

aligned: during its: attempted landing. The physical

facts .of the crash, which were stipulated. to. by East-

ern .at the trial, revealed ithat Runway.:4.Right was

150 feet wide with 25 feet. of asphalt shoulders on

either side. Despite the width. of, the runway, the

plane made ‘its initial impact ‘at a point 423 feet to

the -left. of the center line of the runway (348 feet —

from: its extreme’ left: side), while the main portion.

of, the. wreckage came to ‘rest 610 feet tothe left of

the:center line (535 feet to the left‘of the runway’s’

edge)... The mute wreckage of the aircraft thus cor-—

roborated ‘Kolarek’s testimony that EAL 512 crossed

the runway at an angle from the left, and continued

its, approach despite its improper alignment. With:

‘this and other evidence which we need not repeat

properly before him, Judge Abruzzo correctly con-

‘eluded that Eastern, which was responsible for the

safety of its passengers,’ was negligent in continuing

its landing approach. after losing: alignment with the

runway.

2, THE “yassep aPpRoacH”

Phe case against Eastern, however, was not re-

stricted to evidence that the plane was improperly

aligned. It also appeared that when the crew finally

decided to terminate _. improper approach, the

- “missed approach’ maneuver was performed in a

negligent mariner. : Og

‘We have already noted that when an airplane ex-

ecutes an ILS landing it is guided by radar until it

. . intéreepts a localizer beam. This - interception, it

_ appears, occurs at a point beyond the. -runway’s

so-called “outer marker.” If the aircraft ‘remains on

the.localizer beam, a ysual display and audible signal

will occur in the eqekpit when the plane passes over

__ the outer marker. The crew thereby is informed that

the’ airplane is 2.7 nautical miles from the runway’s

__ threshold, on an. extended. center line, and that the

_- plane’s altitude is 747 feet. Upon passing the so-called °

“middle marker,” a similar display and signal occur, —

which alert the crew that the plane is then six-tenths

of a nautical mile from the begi ing of the runway

.and 209 feet above it. It is at this point—the middle

marker—that a critical operation is to be performed. |

The pilot must direct his visual attention outside the <a

cockpit to determine if his craft is in a proper posi-

ion to land. If, as a result of this action, he ‘con-

cludes that the airplane is not properly positioned;

-he must execute what is referred to as a ‘‘missed

- approach.” |

_ This procedure we have outlined is ‘necessary, we

are%told, because pure instrument: landings are ne

re feasible; the pilot must be able to see the runway in

order to land his plane’ safely, Accordingly, each cate-

512—a DC-7B—were:a ceiling. of 200 feet and one-

_. half mile of. visibility. Thus, the runway had to be

‘clearly visible to the pilot when. the: plane was _one-

half. mile -from the threshold of the runway and 200

feet above the ground. This distance corresponded to-

°F

the middle marker, and it is for this reason that the

pilot should have made his observations when the -

plane passed that point. ins Gag. Beak "i

_ . Eastern’s Flight Operations Manual clearly speci- —

fies that ‘‘a missed approach will be executed when

visual contact has not been established when. mini-

mums have been reached or at any time visual con- -

tact is lost. after descent has been made to mini-

—————

- mums.” And Eastern conceded that it was possible.

to make a missed approach from as low as 50 feet,

while Captain Krasky, Eastern’s Manager of Flying,

testified that he had cmeted thioed approaches from

as low as 25 feet. ey : ;

_. It is clear from all the testimony that the missed

approach maneuver is basic to safe flying and one

with which all commercial pilots must be completely

familiar. Indeed, the procedures’ for its execution

were detailed in Eastern’s DO-7B Flight Manual.

Briefly, it-stated that the captain must first apply or

call for power, usually METO power (maximum

except take-off) although with flaps and gear down

and the speed reduced for landing, T. O. power (take-

off) may be required. It continued that, as power

was applied, the nose of the aircraft should be raised,

and when-a positive rate of climb was achieved, the

‘wing and flaps should be returned to take-off position,“

and the gear should be brought up. Captain Krasky

was clear in his testimony that the flaps and gear |

should never be retracted before a positive rate of.

-¢limb had been, established; otherwise, the -aircraft

will descend at an even greater speed. ibe

_. . Despite thesé established procedures, which: were

_ Well-known to the crew, it has been conceded by East-

‘During the landing approach, the flaps should be either at

30° or 50°. The missed. approach procedure calls for the flaps to -

he returped to the take-off position of 20°... '

' .ern that at the time of initial impact with the ground

not a single one of EAL 512’s four engines was pro--

ducing power equal to METO.’ Moreover, the land-

ing gear, which Kolarek specifically stated had been

lowered, .was found fully retracted, while the wing

' flaps. were in take-off position. Theodore Perry; East-

ern’s expert witness, testified that it would take at

least nine seconds to raise the flaps‘and gear. Surviv-

_ Ing passengers, however, testified that they had felt

the thrust of the engines only. three to five seconds

before impact, thus indicating that the flaps and gear

were raised before additional power was provided.

_ ‘These facts, plus other evidence introduced at the.

trial, support’ Judge Abruzzo’s finding that the crew

of EAL 512 deviated from the procedures for a missed

approach established by Eastern’s own Flight Opera-

tions Manual. It was within the province of the judge

to conclude that the failure to follow these instrue-

tions constituted conduct which’ did not measure up

to the proper standard of care. See, e.g., Citrola v.

Eastern Air Lines, Inc., 264 F. 24 815 (2d Cir. 1959) ;

Danbots v. New York Cent. R.R. Co., 12 N. Y. 24 |

234 (1963). We are unable, therefore, to fault J udge :

. Abruzzo’s finding that the crew of EAL 512 hegli-

gently and improperly exécuted a missed approach.

~ Unable to explain the crew’s inability to land the

plane safely, Eastern propounded the engrossing the-

_ ory that the accident was. caused by a. “great. black

_ * According to Fastern’s Manual, “ETO power is 2600 RPM’s

and .2700 brake horsepower, while T. O. is 2900. RPM’s and 8250

brake horsepower. At the time of impact, however, the four en-

gines were’ producing 2474, 2445, 2453 and 2492 RPM’s respec-

tively, aiid 2290, 2170, 1990 and 2185 brake horsepower. Surviving

passengers stated that they felt a surge of power just before im-

pact, but that the plane did not gain altitude. — Lee

backed gull’’ striking the airplane. Apparently con-—

ceding that a 3 to 5-pound bird could not knock its

96,000 pound airliner from the sky, Eastern instead

argued that the collision with the gull may have dis-

tracted the crew just long enough to make it pepo

sible to execute a missed approach.,

The difficulty with Eastern’s bird strike theory is :

that it is highly conjectural and not supported by any

convincing evidence. It is true that the carcass of a

gull was discovered on the afternoon following the

crash, at a point approximately 3700 feet from where

the airplane made. its initial impact. But the mere

presence of ‘a dead bird near the scene of the crash is

‘hardly convincing proof -that it was the cause of the

‘ aecident: In fact, the evidence indicated that the death

of the- gull and the crash of the plane were totally

unrelated. No feathers or other bird remains were

found on the wreckage of the aircraft, nor were any.

metal fragments or paint found on the carcass of the

gull. Moreover, a member of the Armed Forces Insti-

‘tute of Pathology who examined the dead bird con- ©

cluded that it had been dead 3 or -4 days before the

crash occurred. Confronted with :these facts and tes-

timony:.we cannot say that Judge Abruzzo was clearly:

_ in error when he rejected Eastern’s bird strike de-

- fense.

a THE GOVERNMENT’S NEGLIGENCE

1 ecw DUTY TO REPORT WHATHES CONDITIONS

We now turn ‘our attention to the evidence that’ was

introduced. to prove negligence on the part of the gov-

- ernment. As we have previously noted, EAL 512 re-

eeived various weather advisories as it approached

New York City and’ circled: above’ in its holding pat--

tern. The crew was informed of the adverse weather |

conditions which existed at Idlewild, and of the possi-

10a

bility that they might have to divert to Philadelphia.

The flight eventually came under the direction of con-

troller Ketterman, who, as we have noted, was an

FAA employee. He advised the crew shortly after

9:24 p.m. that the weather at Idlewild was “sky par-

tially obscured, visibility one and one-half miles with

fog.” The visibility subsequently decreased to one

mile, and Ketterman reported this fact at about 9:30

to the planes with which he was in communication.

_ At exactly 9:32:49—the precise moments being of -

some importance. to this phase of the case—Kelley,

the coordinator in the “IFR Room,”* and also an

FAA employee, was disseminating weather informa-

tion to the various controllers, and: announced in a

“louder than normal.voice” that the tower reported

a further reduction in visibility to three-quarters of

a mile. Despite this announcement Ketterman advised

the crew at 9:33:57—more than a minute after Kel-

ley’s announcement—that the visibility was still one -

mile. This erroneous report of existing weather con--

ditions was the last weather information relayed to

the crew before the plarie crashed 12 minutes later

at approximately 9:45. tee pee

After reviewing this evidence, Judge Abruzzo de-

cided that the government had ‘breached its duty to

. report accurately current and changing weather con-

_ ditions to the crew, and that this failure was the -

proximate and contributing cause of the accident.

This duty he found set. forth in § 265.2 of the Air

*“IFR” stands for “instrument flight rules.”'The approach

controllers work in what is know: ag the “IFR Room,” which

is at a lower. level than the tower cab where the local con- _

~ troller is located. Kelley, the coordinator in the IFR Room,

was responsible for receiving weather information and dis- ~

' seminating it to the app controllers. pe

: lla

Traffic Control Procedures Manual of the FAA which ©

provides: . | | f. ki 966

At locations where official weather reports

are obtained by the controllers through routine

procedures and the ceiling and/or Moma 4 is

reported as being at or below the highest

“circling minima” established for the airport

concerned, a report of current weather condi-

tions, and subsequent changes, as necessary,

shall be transmitted as follows: .

* * -* * *

B. By approach control facilities, to all air-

craft at the time of the first radio contact or

as soon as. possible thereafter, * * * (emphasis

added). 7 . :

The district judge concluded that the controller’s

failure to report the change in visibility from one

mile to three-quarters of a mile was a breach of the

provisions of § 265.2, because this was “necessary”

Information which should have been conveyed to the

crew “as soon as possible.” The omission by the

controller, the judge determined, constituted evidence

of negligence on the part of the government.

‘The government challenges this holding. Relying on -

a myriad of complex regulations, it argues that the

basic responsibility for supplying weather informa-’

tion to the crew and for insuring that visibility is

adequate for a safe landing, belongs to the carrier,

_ While the main function of the Air Traffic Controllers

is to maintain traffic separation and to prevent mid-.

air collisions. This contention, however, blinks at the

question, since it is undisputed that § 265.2 requires

___ the controller ‘to transmit some weather information.

' The issue, as we see -it; therefore, is not whether the |

governmént had a duty to provide such information, —

but rather what was the scope of that duty.

7 . 2 ; 12a ;

Before we determine what weather conditions should

have been reported, it is necessary to have an under-

. standing of the method ‘employed to measure visibil- i

‘._. ity. On the night of the accident, three kinds of visi-

bility observations were being made at Idlewild. &

special electronic device known as a Runway Visual

_ Range (RVR) was measuring the horizontal visibility .

in the area near thé threshold to Runway 4 Right.

The RVR consists of 2 components—a projector and

a: detector. They measure the transmissivity—the abil-

ity of the air to transmit light—of the atmosphere

between the two components. The information is

. . transmitted to the Weather Bureau office where it is

computerized and conveyed -to the tower for use by

the controllers. ‘The RVR, designed: to report what a

pilot in a moving aircraft ‘will see, took observations

every minute. Ordinarily, these ‘are the controlling

observations and they determine whether the visibility

is adequate. for landing. On the evening of the acci-

dent, the RVR reported values of less than 1000

feet—well below EAL 512’s minimum landing -re-

quirement, Earlier that evening, however, the RVR ~—

had been declared inoperative because of ‘some me-

chanical, failure.’ bites 7

*The RVR is equipped with a special warning device to re-

port the possibility of transmission errors. The warning consists

of “red. balls,” which are red over-lights superimposed on the

- Peadings that are transmitted. At approximately, 8:35 on the

evening of the crash, Keepers, the Watch Supervisor, observed

a “red béll” on the values coming from Runway. 4 Right and

displayed in the IFR Room. Despite attempts to locate the

difficulty, ‘the “red balling” continued until 10:10. During the

_ intervening * period, ’ Bradley, the ‘Weather ‘Bureau observer’

whose. jdb it was to decide if; the RVR system was to be de-

- Clared inoperative, decided that it. was, and took it out of

Plaintiff-appellee contends that the government’s employees

‘acted negligently, and that as a result the RVR system was not

| | :

r | : 1Ba |

, Visibility observations (surface visibility) were also

taken by the U. S. Weather Bureau observer at or. -

near ground level, During the critical. period of ap- —

proximately 12 minutes when no weather conditions

were reported to the crew, these observations indi-

cated that the visibility of Runway 4 Right had

declined to one-quarter of a mile—also below the

plaue’s minimum requirement for landing.. |

, The third set of observations (tower visibility) were.

taken by an FAA employee in the tower cab at the -

top of the control tower. These observations—the

only. ones which remained above the aircraft’s mini-

mums—were being reported to incoming aircraft by

the controllers.* : FE I ne

The government’s position, succinctly stated, is that

-§ 265.2 required the approach controller to advise

~ pilots of changed conditions only when the controlling

__. Visibility fell below the aircraft’s minimum landing

_ Yequirement. Since EAL 512’s minimum was one-half

mile, and since the controlling visibility was above that

figure, the government contends that Ketterman was

under no obligation to inform the crew of the-drop

“rom one mile to three-quarters of a mile. |

~ We are unable to accept the government’s inordi-

nately narrow interpretation of the phrase ‘“‘current

in operation at the time EAL 512 made its landing approach.

Judge Abruzzo rejected this claim, and we agree with him that

under the existing regulations the employees acted. in a reason-

ably. prudent manner. - | : TT ES ey

* Plaintiff-appellee contends that under existing weather

conditions at the time of the accident, surface visibility rather

than tower visibility should have been controlling. The District .

Court did ‘not rule on this issué, the resolution of which depends:

on whether the tower cab was above the fog, At. trial, conflicting

that the government. ing nagligent even if the tower observa-

tions were controlling, we do not reach this contention.

Se Se ae tees oe aaa coatings can stein cae <i” SESE PR A

La,

14a

weather conditions, ‘as necessary” (emphasis added).

f: The government is of course correct when it argues

that § 265.2 did not require it to report all changes in

weather conditions. The words “as necessary” must be

read to have some meaning. But because the govern-

ment was not required to report all changes, it did not .

follow as a.matter of course that it was obliged to.

- yeport only ‘those changes which occurred when

weather conditions had descended below required

minimums. A more meaningful and reasonable inter-.

pretation of § 265.2, we believe, is that it required the

approach controller to report those subsequent changes

which, under all the circumstances, the crew would

have considered important both in determining

whether to attempt a landing, and in preparing for the

weather conditions most likely to be encountered near

the runway. In our view, a drop in.visibility of 25%, -

from one mile to three-quarters of a mile, bringing

existing weather conditions dangerously close to

gm minimums, is such a critical change that, in

thé interests of safety, it should ugit been ae. oh to

the crew of EAL 512.

This is especially true in view of the fact that the

Weather Bureau observer had reported visibility to be ©

one-quarter of a mile—less: than EAL 512’s required

landing minimum. Moreover, he informed the -IFR

Room that the portion of the sky obscured by fog and

clouds had increased from two-tenths to eight-tenths ;

- and other pilots had reported considerable difficulty in

landing -and taking off due to the adverse weather

- conditions. Indeed, thé approach controllers were

aware that some pilots even had been forced to exe- |

cute missed approaches. Assuming, arguendo, that this —

supplemental information did not have to be reported

to the erew, it should have indicated to controller Ket- —

terman that weather conditions were deteriorating

Pan .

seriously, and that ‘the tower visibility fending of

three-quarters of a mile might not truly reflect the —

- eonditions which an incoming pilot would encounter.

- At the very least, however, the RVR and surface

visibility readings should have made.it plain that the’

one mile figure which had been reported to the crew

was deceptive, and that more current information

was “necessary” and* properly should be provided.’

Our conclusion that the changé. in visibility should

have been reported is in tune with the heavy degree —

of reliance which passengers place upon the govern-

ment for insuring the safety of their flights. While air

travel in this jet age has become commonplace, we —

know too well that there is always lurking the pos-

‘ sibility of tragic accidents capable of snuffing out the

lives of hundreds in a mere Matter of seconds. Much

of the success in preventing such disasters can be at-

tributed to the federal government’s, assumption of the

°It is of interest that Nelson and Speiselman, the other two

approach ‘controllers on duty with Ketterman, did report the

drop i in visibility to other aircraft soon after it was announced.

It is true that they. were handling fewer aircraft than was

Ketterman ; nevertheless, the fact that the other controllers be- .

. lieved that. the drop’ in visibility was important enough to re-

port to the airéraft with which they ‘were communicating, is

some evidence that Ketterman was negligent in not immediately

this information to the flight.

The government argues, however, Ketterman did report the

change in visibility when he saw it posted on the sheet before

him. By that time, though, EAL 512 had been given an ap-

proach clearance and had been turned over to the local con-

troller; therefore, the government contends, Ketterman. was not _

able to advise the crew of the reduced. visibility: ‘This ‘argu-

ment, however, is without merit. As. we: have, previ noted,

Kelley, the IFR Room. coordinator, in a. “louder than normal

voice,” announced the change in‘ visibility ‘to ‘all three con;

trollers. When this announcement’ was made, Ketterman ‘was

nee aah ee all ae ee ee

tunity to. relay this information.

274-548 67-5

16a

supervision of commercial flying; and public confi-,

- dence in air travel has been fostered in large measure

by knowledge that our government, recognizing the

high stakes involved, is constantly overseeing the ¢ar-

rier’s operations in order to promote safety. 7

‘Moreover, we can give little weight to the govern: |

ment’s claim that since its initial decision to provide

weather information was a gratuitous one, it could

proceed with impunity to violate its own regulations

and act in a negligent manner. Dean ‘Prosser has put

- ¢his doctrine to rest in-his treatise: “(T]he good Sa-

- inaritan who tries to help may find himself muleted

in damages, while the prie d the Levite who pass

_ by on the other side go on rs cheerful way rejoic-

ing.” Prosser, Law of Torts (3d Ed. 1964).

It is now well established that when the govern-

' ment undertakes to perform services, which in the ab- -

government may be under no obligation in the ab-

sence of statute to render medical*care to discharged

veterans, when it decides to provide, such services and

regulations approach controllers would not have to

advise incoming aircraft of. weather conditions, the

decision ‘to provide su¢h information would lead car-

‘riers and their pilots normally ‘to rely on the govern-

menit’s performance of this service. The carriers, rely-

‘ing on the FAA to keep their pilots informed of cur- —

rent weather conditions, would be likely to reduce

both the quantity and quality of their own weather

reporting. In light of this reliance, it is essential that

17a 7 re

eas government, ean aii, those services it.

- has undertaken to’ provide albeit voluntarily and

gratuitously. In any event; the failure of the govern-

3 mefit to inform the crew that the visibility’ had

- dropped from one mile to three-quarters of a’ mile

* was a violation of § 265.2’s command that ‘‘subgequent

changes, as necessary, shall be transmitted,” and

| Judge Abruzzo properly concluded that this omission

constituted negligence on the part of the govern-

ment.” See Citrola v. Eastern Air Tines, supra;

srantole v. NewYork Cen. R.R. Co., supra,” —

2. PROXIMATE CAUSE

The v—_ © argues, however, that even assum-

ing it breached its duty to the passengers by failing

_ to report weather conditions, the omission was not the

proximate cause of the accident. We cannot agree.

. We note that the district judge found ‘that if the crew

had been ed of the changing weather condi-

tions, | the pilot might have decided to divert to

Philadelphi: ther than to attempt an ILS landing

.. Tn its brief, plaintiff-appellee urges that the government

should also be held negligent because it failed to observe and

report the so-called‘ “quadrantal’ visibility,” which plaintiff-

appellee contendg was. below EAL 512’s authorized landing

minimums. Quadrantal visibility is a weather condition where

the visibility in one ‘section of the airport is different, by

one-eighth of a mile or more, from the prevailing visibility.

' If the quadrantal visibility is in the quadrant of the airport

where an airplane is to land, it controls, and if below mini-

mums, an approach is prohibited. Plaintiff-appellee contends

that there was quadrantal visibility im the atea of the airport -

dlains and we do not reach it since we have already concluded

that the government was negligent on ot Mr grounds.

at Idlewild. Moreover, the jadye observed, if the crew,

» hed Known: Of current conditions, they ‘tight! have

‘manenvered the plane differently, and could have been

‘ready and’ able at an earlier time to execute a missed

These’ Reiditipss fy: the judge are not eheittty errone

ous: While Eastern expected its pilots to land if the

visibility was ‘above the ¢raft’s required minimums,

_ the ‘pilots’ were’ not required to do’so, The final de-

éision ‘either to attempt a‘Tanding or divert to another

airport was in the hands of the ‘pilot. This isquite’

properly so since he is in ‘the best position to observe |

and judge the actual effect of the weather on the

__: plane’s landing approach. If the pilot does decide to

attempt a ‘landing, information concerning reeent:and

significant, changes in weather conditions is essential

to his mental computations and the exercise of his

judgment: ‘As. we have noted, Eastern’s Flight Opera-

tions Manual spegifies' that a missed approach must

be executed if visual. eontact is.lost after the aircraft

has ‘passed the middle marker; but-the pilot has little - e

eee guarantee’ of ‘successfully performing this maneuver

-oriee the 7 lane. h has goné ‘much below 50 feet, A missed

-- approach re d precision coordination by the crew,

| and. the success or failure ofthe operation, when: the.

_ plane was at, a. very low altitude, depended -on,just

ee how. rapidly ‘the crew ‘reacted. ‘Thus, it was: of the:

|. Utmost" iniportan stat the ret ‘be lulled: into

—.& false Sensé of ‘se pina should have ‘been

becom Le

‘ ul

TELE aa 4

2 192. :

, cuidate even , though the controlling viii was |

reported as being above minimums... ¢4,)) Gen)

In light of these circumstances, we agree. that the

negligent. failure of the government to inform EAL —

512-that visibility had dropped. to three-quarters oo

mile—only slightly above the craft’s :minimum—was

a: peeling: and. coneurrent cause of the: ‘accident.

See DRPRNEHS BASED ON Te TORT CLAIMS AOT*

jruting bak casi eee a

' - government argues that.even if it did-breach.a duty,

. and'even if that breach was’ the proximate cause of

the accident, nevertheléss, the facts of the’ present

case bring this action within sevéral of thé exceptions

to the Tort Claims Act, and therefore the government

“We reject the government’s contetition that under New York

law it must be relieved of liability because the failure of the

crew to execute properly a missed approach ‘was an’ —

superseding cause. This Céurt has held:

[I]t is mot:the: law ‘of New °York that\the intervention

Of a, succeeding fault as such gives immunityto an earlier

+.) Wrongdoer. at Beegnoeh, Bf. f _Becond, wrongful actin -

eS aay Peo phcetn gdh ead athe

vy Person. v. Couldwell,, 1%6, Fy; 2d -287,./941.,(2d> Cir.) (Le

,, Ammar y, American Export on 326 F. 2d, 955 (2d

BY ' Cir.), cert. denied, 379 US. 824 (1964 shag hei Pima

1,72, ar8 unable to conclude that the accident was 1 near

2", : ; Ln ln Sa a Nag

$e , The nt’s 2 _ 308, P4 So Be es

: fe ih SMe RIGS ILS TS extntt if

WRISTS ie ae 8 Prick Tatts aZs ot: noel page?

- ie Galdip evan teanianity: We are refered to 2608.0,

aeet! Mirae Arado ho iti yi 5 SET aye

" ehethee 5 not the ern tt

volved: be. abused. (Bmphes, ended, meee

fot AEE *

| rl aang oot of * ** meso

| Based | on ‘this ‘section the ‘government raises ‘three

a. “Beecuiion of-4 a Regulation” Baception,—'The

gottrembeabieindaethet: it may not: beheld liable. be- -

= rn at a err

- Cedi as \pat on 6P'a regulation is to bar

Dalehite. v... ai 4, 346, U8. 15, 33 (19 3);

and, the: Nbr tna Soh lye sig in effect: inyali-

Begee Someone areca aM

1 a th gone eet

tet ion‘ vier

Sate ir htc era

ot the’ ‘visibility ’was ‘above’ the “mir

§ 265.2 is not ‘86 ‘phrased instead)’ ‘it provides’ thatthe

controller shall advise of weather

i ey mn in order’ to determine’ whether there .

et . .

@ Tegulatio: Tr, i

: regulation by bs = | ti

sion ‘is that’ the seedless was 4 sidtheat The | govern:

ment ‘cannot, ‘therefore, ‘disclaim’ its liability” on tlie

ground that the omission occurred i in ‘the ‘execution of

tion.” eon

‘b. The “Discretion urd |

government: ‘Also argues © tha 0 weal

changes to'i in¢oming aoe when the Vsibity above

the’ ‘ninimums' ‘is is tb) ec al Maa ‘and

merit: When the mina decided to to tai and :

operate an’ ait traffic’

_ Slott was the exercise of

—_

- function or duty.” ; a

Ge, ofa sub-nom., Dnited States. Y. Tow ‘Trust |

- tower.

= Fi i 1 calm a :

the creation of the FAA. regulations was a diseretion-

ary.funetion, it.is true nevertheless that no discretion

was left to the controfler as, to whether to comply with’

: $265.2 once it was promulgated. The section required

the, controller, to report; “subsequent changes, as, ne¢-

essary” ” and his failure to report such changes cannot

sl ny i ae ial

“¢. The Miarepresentation i Beception, —The

ment’s final argument. under, the Tort Claims. Act is is

_ that. the negligent failure of its employees to convey

‘weather. information was, a;“misrepresentation’’ which

cannot, serve,.as. the basis for liability. 28 U.S. C.

§2680(h),: supra. It is true, as the government, con-

V eer 2, at 3M

ar, ¥ e y

‘sl ‘ >

a £4 f

fi i

. Seyrys 5 iets

’ 2 - ms i T

Ba rsigtaee the : pig“ pratt of the A 3

. fi , — : , é ,

Was teported!to: and ‘relied

_.* Ba

texid to: $i hatansaahae pinot ile i

int'§'2680(h). ‘The government refers'us, howeverytd

the National Mtg. Co.case, supra;

Oiredit'hel’ “.4 the failare.ofgovernmenit |

CIF TAAGRI'. 4d: aeendingr laced, cnealiemmeessime ened ee

within 'the n...representation exception: Bat'the heavy a“

- Péliatice’ of the’ government! om that! case is:

misplaced

iti view of the: g) t:

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&. Neustadt, involved idww iniaoourate:building appraisal

by’ ‘the’ Federal Housing Administration (BHA) which

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ice sae Het |

ited States; U.S. 61, Which

as inte i

able a Torts Act claim! for: exppertkitlameges

_ suffered when a vessel ran edly neglig as a at fare

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ported to the approaching stand. Moreovee, we'hbld i%

that the negligence of both tortfeasors in causing ‘}

the accident was concurrent, that they were in part i

delicto and thus neither was entitled to

We have carefully reviewed all of the parties’ dee

‘ °

_tentions, me, find no reason to upeet ti 5 Abruzzo’ Ss

judgment. ; | . , the eg td

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ere eerneeerrsiemnncemaaaaemmaeaeeaaeaereamemaeeseremerememammmmmmmmmmmmanmmenaes

Eastern Air Lines by virtue of diversity of citizen-

ship, plaintiff being a resident of Connecticut and

defendant Eastern a Delaware corporation having

its principal’ place’ ob iin ih Florida ' (28 U.S.C.

1332), and against’ the’ United ‘States of America

under ‘the Federal Tort-Claims Act (28 U.S.C. 1346 |

(by). Hach. defendant eross-claimed against. the other

for idemnification. ._-,

Plaintiff and Eastern Air Pll agreed to waive a

jury, and all issues of. liability were consolidated for

trial and tried to the Court without a jury.

_» The deceased, a” ‘fare-paying passenger aboard:

_* Flight 512, was one of 25--persons who died as a

result of, the crash, Some 28 or 30 other passengers

: Were injured. 4 A few of these cases haye heen settled; -

the others are still pending.

* Eastern Air Lines, Flight 512 (hereinafter referred

to as EAL’ 512),'a' DC-7B aircraft and a regularly -

scheduled passenger flight,had departed from Char-

. lotte,, North, Carolina, for, Idlewild, International

‘ Airport, ew, York. ‘There ; were 45 fare-paying pas-

‘sengers and a crew aboard. The plane crashed to the -

left of, and adjacent to, Runway 4 Right at Idlewild

while attempting to land: Att) that timé ‘there was a.

id Pal of ame:

e Government.

Rael ry sdb by" the estimbhy ot ‘ari

tbe vat the trial ‘and! byt tit:

ite flere evidence by the rties. Certain’ Pi

filed’ stipulations "agreeing to? bé bound’ by”

end ‘result’ of the’ ¢ase ‘at bar‘and Have ‘fileda brief.

* Phe plaintiff ‘has’ charged both’ Wastarn' and"the

_Government with’ negligence. Bastéin and the’ Gov.

ernment have each’set up defenses against the charge

of negligence ‘by the plaintiff. :

ORNS Cobh intention te tak ay tha Samad ot

‘the respective parties in the’ following order: (1) the

plaintiff's. claim against’ Eastern; (2)' the plaintiff's

élaim ‘against the Governmenit; ‘and ‘(3) the ‘cross-

claims’ of the’ Government and astern ‘against ich

other for idemnity.

The plaintiff contends that the facts proven at the

trial clearly establish ‘the negligence of Eastern; that

- this*was a “weather” accident and the’ crew of BAL

512'‘was fully aware’ of adverse‘ weather’ conditions

but ‘elected ‘to accept the approach and landing clear:

arices from Air Traffic Control and’ attempted to’land :

that EAL 512 was negligent’ in the manner in which it

conducted its approach; that the crew passed beyond

its authorized landing minimitims and cotitixiued its

' approach, although it was not aligned with Runway _

4 Right and either did not have vistial reféréncé to

the ‘runway ‘or at Some poitit lost visual’ reference;

and that instead’ of inimediatély: terminating’ the ‘ap-

_ (prodély, the ‘eréw contintied td! déscend ‘to an wnneces:

strily low and ddngerous altitade, and. when 'the' crew

sts. emai ae ive errno

. ble, ‘ania again oceur when the aircraft. i tthe

middle. marker which is six-tenths of;a na a

from. the end. of the runway. When ‘this, ny me

signal occur at the outer marker «the, enemy cng

they are 2.7 nautical miles from the bh

way,. and. that the plane. must, be. ‘at. ‘a ee alti

tude. Upon passing: the idle, pores He, plane is

at an altitude of 209. feet‘(Pitf’s Ex 10, ‘pp. 2, 4).

Upon passing the middle marker

his full attention to-visual references’ butside the cock-

pit. Then he must decide that his aircraft is in a

proper position vie’ land; - otherwise, ‘he must execute

a pullup called a pproach (Tr, 189).

Surviving witnesses see aut that ‘they felt power

being applied seconds before impact with the ground

(Pitf’s Ex, 12, p. 6135), but; the, aircraft did. not re-

". spond nor’ did it gain altitude as it should have.

The minimums applicable to EAL: 512. were a :200- i

foot ceiling and one-half mile visibility, .This tneans

that he cannot descend below 200'feet. above the run-

way, unless-at the-time he was; one-half mile from, the

end. of. the Tunway and 200 fe above | the | Funway,

and the ay clear: visi igh

an Yas sleet ése mininnivis fn O. éans that

ths dew OP EAL 512 ti aie wa issih vertices sas

, Fase 5

4 - r ? > Chg.

yo TT, , he

. fe*ni th ot ge

‘ <* . .

ab 7a : x -

it ie ' ~g

_from 50 feet’ (Det 0). aD guia bie oust:

, 274548616 ae

a> a

——————

ff's ‘Hehibit'8, ‘Wastern’s’ -Flighit: Operations

‘states’ in ‘unequivoca ‘terms what procedurés

ved. tipon’ passage of ‘the ‘middle ‘inarker

‘

| spot 9 e point. a ir pt ILS erat will’ be

Se il of ‘ain tne er ae

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ef ) aba

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ef ati! Ao aad thiat ‘its’ drown property: node

thé *tilissed! ay ‘procédure'in'a DC-7B 4

Bastern inert ont cen 'to be ‘fol:

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oo ee My sa Deis A-DUBS orteereay Alo nit te egies GPP

1B. Wing flaps may:be lath at Tuse-Orr position 3

; “or retracted at; Captain’s prin tp Sant.

MBTO nidans maximium ‘power’ é BLO! imo.

Thiéaris ‘ take-off, ‘and “RPM” ean “ere HF

api « iite. Stes g ‘

Captain pn ey fully’ exp a ai Ps Pad

quired of its pilots in eet a

The' pilot must first apply’ ‘the

_ the nose of the aircraft skyward; an ; the

airplane accelerates to the’ Warel dite airspeed,’ ithe flaps

‘would be retracted to the 20-degree ‘positién‘and only

after’ .a ‘climb attitude was! established ‘the (landing

gear should. be retracted (Tr.:195)/-He stated:thata —

missed approach usually required METO,; power and

it might even require take-off: ‘power Tr,,,197). Usu-

_. ally the man flying the. eirplene. will advances, the throt-

tles and call for . pilot... engi

: advi

-) MEILO- power is, according to Eastern’s Manvial,

ee 415 inches of manifold pressure, 2600 RPM, and:2600

brake horsepower. Eastern has admitted (Tr. 213-14). —

landing gear handle in. the cockpit was in the gear-up

position; (2) the landing gear was in the fully re-

tracted position; (3) the wing flaps were in the 20-

+ degree’ positi ion; (4) the aircraft’s four engines were -

producing power at the one RPM i oe :

- Engine No.. 12474,

, Engine No. 2—2445_

" Engine No. 3—2453 *

-, Engine No. 42422 .

anid (5) the aireraft’s: four engines were i nevelonine

horsepower as follows: -

“Engine No. 1—2290 Lat

Engine No. '2—2170°

"Engine No. ‘3—1990' |

aah Kraskey ore? this ademas as aia

“to. him from. Bastern’s Admissions, and stated, that

‘the engine . BEM. power settings did Hot meet

Ba site ds t METO or tak in mo.

i it's, i ‘ epi gee gata

“4 wpe lag velo oh re aC

et .

NS ua

CPSETA. SSS

378 |

‘Summarizing |‘ Captain’ Kraskey’s testimony; 'the Mee

crew was required to comply with the standards set ~

forth in the applicable-Civil Air Regulations arid with .

413-115), The Violation ‘of | thése safety Tules is. some

evidence of negligence. Citrola V. Eastern Air Lines,

265 F.2d 815. (O.A. 2d, 1959); Danbois.¥, ‘Néw: York

Central Railroad Co.,12 N.Y .24; 284 | (1963). arith °

Plaintiff: contends that: when. the- aircraft réaclied -

the middle marker, ‘six-teriths of -a mile; prior to’ thé

runway. threshold, it was required ‘to be both aligned .

with the runway.:and to. have: adequate ‘visual réfer-'

ence to the runway. ‘of intended landing: If both:of - —

‘these conditions''were not’ satisfied and either Visual

. reference. or alignment was lacking; ‘a. mussed. apt

proach was. in. order, ‘The missed: | approach failed

because there was either Jack of. visual |refererice: or

alignment...-.)..5) “fy.y » OT Ayrtal a Gabonese -

The :crew’.was alerted to the ‘adverse ‘weather. ‘con-

ditions through Eastern’s radios, ‘through the Federal

Aviation Agency and, in: partictilar, ‘through the: Air

Traffic: Control Service operating on a. number of

radio communications, radar and electronic’ facilities

for the safe, ‘orderly and: expeditious

ment: through its Weather Buréau iopérated. and con-

trolled ;various weather observations and advisory: fa-

cilities located at. Idlewild. {Weather conditions: were

relayed: by. the} Government; to, the; erew: of;:Eastern

‘flow of air

and by: 'Bastern: to vitserews. There is some:idispute ,

as to whether the weather conditions Were :-below

mihimpm, dt nots: ‘but! that: particniar, point’ wil ‘he

te'oqui iorsRiD ts ai hy ofosotaqe eetdinit at filty

» e

. . ° me «

PP enn ™ poneany

rcoted in the Hasiorn defense agninat the Govern |

mentiys: ragd ask, Pheer wheretioes of: ‘aye Efe;

Tia ltho, dostiaitv- adler dpe danding owkih a? tak6t a

niijing ‘pilssdnget sind thie dart te ‘cogniaant:f tie

fact’that the pilot:of: DAL 512 owed a duty of safé —

condact-to his: passenger, using such eare and caution

: regis, ena) on tmeccinean pncetns rot, al

time of: the’:attedipted. landing. Th oe

— aR AL: SA--wies Qin lindmationt): whaler: -eoritastii with

Basterni company ‘radios! tren ‘the time it! depiited -

from’ Charlotte, North: Carolina, until. the time ‘it

etashed ‘at: Idlewild, ‘At the same time, EAL 512 was

_ also! in’ édntact! with’ the Air ‘Route Traffic Control

Center (ARTCC) operated’ by the Federal Aviation

Agency: ‘At 8:22: P.M., the Hastern’ dispatcher’ ad-

‘vised EAL 512 that it might have to divert to Phita-

delphia.’ EAL 512 answered: that: they had: 45 pas-

sengers on board for New York. However, the’ dis

patcher at Idlewild, responding through Eastern Air

Lines 'fadio at ‘Washington, sent ‘a’ message, “Due 6

several other flights: diverting to Newark, New Jerséy,

prefer’ to: put you into: Philadelphia.” (Pitf’s. Ex! 25,

— py BJ): EAL 512 ‘seemed ‘initent upon” landing: in ‘the

New ‘York ‘area and:did not wish to proceed to Phil-

_adelphia ‘unless requiréed’'to do‘ so by the Weather

Bureau’ at Tdléewild. ‘At 8:45: P.M., EAL 512 entered

‘the! New ‘York area, ARTCC informed it of a “pretty

bad fog on! the a ” ahd it was advised, “‘delay.’”

At (8x49) PM, §12:-was advised by ARTCC

that a DO+6 and ‘eit* Blectra: missed “an appecich

| approaches." Tt twas ‘also wd:

roa tn te Seranestgersa ae mg —_

imopebatives: Btto on tortaove. oft tanec) san -

(ABPBOO: i tranmisitted «the: following, “Roger, ° idle! |

wil fs making sae wh is uh — type of

309

: Sores eEAL |

eer ‘ DAL, 950

: maby he of add’ of, tages ne

se rae meape tate beet i ‘an

_ imately, a twenty-ininute period, landed entsly on ths

yunway. An. Eastern plane, landed, safely on, this run: -

: War one minute,and a half before EAL 512 tempted

its landing... Sita dn" Agnity “BacReoaks bai

snares passengers sot apraryta i

: Vpn sitenat nek led be dente iY

Rone of these survivors. saw, the, runway. and its, run-

be 2 lotte, Ne .

Fite

40a

the associated markings- thereon as he saw them at

the time of the crash. Mr. Kolarek stated that ‘the

arrow drawn from the: bottom righthand corner of

Plaintiff's Exhibit 13 and running towards the top

left of the: page represented the flight path of EAL

512» which shows ‘the’ airplan¢ crossing the runway

at an angle to the left. He saw the landing gear go

down and he even saw the tires on'the landing gear. —

He_ also. observed the flaps extended twice; the second

time ——— much more than the’ first time when

the airpl was very close to the runway. While

the plane on approach, he saw white lights and

he described those as being rows of lights like bars:

- He also observed red lights; just prior to the thresh-

old of the runway; immediately ‘after he saw the

red lights, he saw the runway itself: The white

lights which ‘he observed prior to the time he saw

the red lights were bars of white lights and were off

to the left of the aircraft as he was looking down. The

red lights were much closer to the aircraft and it

seemed ‘to him that the aircraft flew right over the .

red lights. He stated that the airplane .passed over

- the red ‘lights at an angle; that the airplane crossed —

‘the lights going’ to the left and at that time he saw

the’ ‘painted: white linés. on the runway itself: He —

stated ‘that he observed these painted white lines

‘below ‘the aircraft at the moment the aircraft flew

across the runway. The airplane was’ not aligned —

with | the ‘white’ jines ‘and he estimated ‘the airplane -

eedin, 20) degrees to the left of the white

Hide ‘He even ‘saw the’ pavement of ‘the runway ‘as

the: ‘aircraft passed. over it, and: after the airplane

crossed ‘over’ the ‘runway; he’ saw blue lights. These _

blue’ lights were to set ad ‘of the‘place where he had |

séen ‘the ‘white ‘lights’ ‘After the aircraft’passéd over

‘tie? tatiway at’ eared ‘there’ was’ tharshland -or

regular Jand, thén be. saw. the. blue, lights. and. the

taxiway with a “fat yellow centerline,’’ then ‘ai

line of blue lights. He remembered ‘ at he could even

_ see. the pavement. of-the taxiway. After the airplane

had crashed and. he was on the ground out of the

airplane, he could see the runway lights off to. his

left. (Pltf’s Ex. pp. 8107-39.) .

_A,,second passenger, Robert L. Starski, who also

survived the crash, estimated that he had flown in

. ¢ommercial planes probably 200 times ‘prior to this

accident, On this flight he was seated in. the las‘

seat on the righthand side of the airplane next to

the. window, being seat No.‘17D as shown on Plain-—

tiff’s Exhibit 8. As the airplane passed over Rocka-

way Peninsula, the aircraft was already in the fog.

He could see the glow of the rotating beacon reflected

by. the fog. He observed a string of green lights

which he described as threshold lights. and the run-

“another

way lights themselves. The runway lights ‘were per-.

pendicular to the green threshold. lights and. were

airplane was moving. When he saw the green thresh-

old lights, he also observed that they were in ‘fog,

wliich was more or less about the same density as

the fog he had observed when the aircraft Was over

Rockaway Peninsula, He described the approach from -

Sandy Hook until. impact as. smooth; there was no -

turbulence. (EAL Ex, T, pp. ' 8206-8222.) .

Robert E. Brown, also a surviving’ passenger, testi-

fied that -he had flown some three or four times

weekly for some considerable time prior to the acci-

dent. He occupied seat No. .14C, as: shown on /Plain-—

taff’s Exhibit.8, and was looking out of ‘the: window .

on. the righthand side of the aircraft. Hé saw rows

‘De

sla the dtivade ‘of the utiovate at ‘this time beween |

25 and 50° feets’ (EAL Ex. U, pp: 8345-8360.)

"One. of the’ asm stewardesses, Helen Mathys,

i who testified b eposition, stated that she was sittmg

in the ‘back’ org the plane on the right side in the seat

“designated D on Plaintiff's’ Exhibit 8. Immediately

- prior to the crash, she’ léokéd" out ‘the’ window'on

‘the righthand ” side* of the aircraft and saw’ several

white runway lights. The lights she saw were not

flashing’ but were steady, and she observed ‘these

. Funway lights through the fog condition. At that time

she heard the erigine thrust. This thrust indicated that

the pilot was: attempting’ a thissed approach. (Pitf’s '

Ex. 5 pp. 5012-69.)

~The other stewardess, Patricia Richards, testified

that she was looking out on the left side of ‘the plane

in the back and, could see no lights and that the: ap- .

proach: seemed northal ; that she’did’ riot feel ' any

turbulence or turns nor hear any ‘unusual noises.

(Pitf’s Ex. 11, pp. 5078-79).

_ Section 40.351 of the Civil Air Régulations of the

Civil Aeronautics ‘Board provides’ (Pitf’s Ex, 1):

§ 40.3 19 Operational Control. The air ¢éar-

dag’ ai | be responsible, for operational con-

D. ithe

Fiabe (> smesounibiesey) of pilot in command. The

: « “pilot’‘in: ¢ommand shall during’ flight time. be

_. In conftiiand of the airplane and crew and: shall

.. be responsible for the safety of. the PARED AETS,

i; @rew members, cargo, and. airplane. .. - a

Ne ered Ra tied the Leestcnanond :

tliat: it.was going: to’ find the defendant, Eastern, Air

Lines,’ guilty. of: carelessness: and negligence to. ‘this

_- plaintiff, This.determination:is»ines¢apable:': 4.2

-jjAsoal defense; against, this: plaintiff, BAL: comininle |

- that the accident was caused by a bird striking the

rer PM OLN. I SRT BENG AARC AGIA ST OILS GALE LI th rar Patras Paton | Bawr 3 AES

| plane at a eritical’ point in the approach: Kasterti ad-

- Mitted'on ‘the opening’ that’ it ‘could ndt prove’ that'a

«dead ‘bird: which was found ‘the day ufter‘thé actident —

7 ‘aad strat! platie! Te asked the Court tovitifer;in

thé: face of overwhelming’ evidenes'to the! contrary,

‘that>a “bird strike did’ occur and ‘that it‘either' dis-

. ‘tractéd the ‘crew or ‘caused sonie ¢ritical instruments —

amined the remains of the dead bird -and. concluded

y 4

to a

8543

mains on the aireraft wreckage. All parts of the bird

2 'e ‘ ¢

ocation

; tia

; taken place even further ‘back in the. approach. Since

the initial contact. with the ground was 3,460 past ‘the

threshold, the alleged. bird strike took place more than

‘Tkeré is;a complete lack of evidentiary proof that.

the bird did strike any part of the plane. This is best

illustrated by the — from Eastern’ 8 cipost trial

brief (p. 45): :

- There is no proof in this record that it did not .

hit this aircraft. * * * :

The converse’ is also true, There is ‘no sirobe that the

bird did ‘hit the dircraft. Eastern had the burden of

proof and did not sustain this burden.

The Government disclaims liability. and claims (1)

that all pertinent weather information was made

available to the crew of EAL 512; (2) that the

weather soaitions existing at the time of the crash .

were above landing’ minimums; (3) that EAL 512

failed to comply with Eastern’s rules and regulations

in making its approach;.(4) that the runway visual

range was malfunctioning at the time of the crash;

(5) that Eastern had the whole responsibility for the

safe operation of EAL 512; and (6) that plaintiff’s

claim falls within the statutory exceptions to the Gov-

ernment’s waiver of sovereign immunity for tort’

claims. -

- . One of the theories set forth by the plaintiff con- |

cerning the negligence of the Government is that the

‘government employees were negligent in declaring the

Runway 4 Right Visual Range (RVR) inoperative

when it. was actually functioning and displaying

valués below EAL 512’s authorized. landing mini-

mums, im failing to restore the RVR to service and

in failing to report the-RVR values to EAL 512,

- The RVR is an electronic instrument developed by -

the Weather Bureau t to’measure horizontal visibility *

———

» ba

im the: area adjacent ‘to the threshold’ ofthe runway:

The: RVR is designed’ to measure the wisibility a hu-

man observer would see if he was’ statiding “iri the

same areas as the RVR and taking ‘observations every

minute. RVR, in contrast to the prevailing ‘orrmway

visibility, is based on what a pilot! ini! a moving wir-

craft will see. The RVR produces'a new’ valtie each:

minute ‘which is then displayed in the Weathér Bureail —

office, the Tower Cab and the radar room. ‘When-the

RVR is operating, the RVR values, rather than either . «.

the Tower or Weather Bureau visibility, controls air-

_ Eastern’s Flight Navigation Manual (Pitf’s Ex, 4,

par. 28-2) specifically states that the authorized land-

ing minimum ‘for an airplane similar to that of EAL

512 is 2,000 feet: Captain Kraskey testified that when

pilots received a report of any RVR value of less than

2,000 feet before commencing their approach,-they —

would not be permitted to commencé an approach |

regardless of any other information which might be —

. received (Tr, 278-79). Captain Kraskey also testified

that if they received such RVR report after having

started the approach, but before Teaching the outer

marker, they would immediately discontinue the ap-

proach and execute a missed approach (Tr. 298-99).

Before setting forth its reasons for either sustain-

ing or rejecting plaintiff’s theories, this Court must

_ briefly explain how the RVR system functions, —_

_ At a point approximately 500 feet to the right of

the center line of Runway 4 Right, and’ 500 to 1,000

feet from the threshold are two components of the

RVR. known as the projector and detector, These in- .

struments measure the transmissivity—transmissivity

means the ‘ability ‘of:the air to transmit light-of the —

atmosphere sarapled between the projector and’ detec-

46a

j ‘tor: estbiaeimiith thn information ouit to the: Weather:

hs Bureau joffice where the information ia computerized’ “

tanstifitted: to.computéer read-outs in the Tower,”

, IFR.Room.and.the equipment room in the Tower:'

' "The computer ‘read-outs are \intended: for nse bythe —

controllers..so. that) they can ‘look: at the read-out -dis-'

' _ ings would then be transinitted to pilots who intended —

play and. ‘know immediately the RVR. reading’ for

Runway 4.Right at any given time. These - RVR. read-

to use Runway 4 Right. ‘These read-outs used by thé

Tower Cab and IFR Room, as well as the read-out in’

the equipment room, are equipped with a special

‘transmission error” detection device which would

warn the user ‘of the equipment of transmission error.

Such a warning manifests itself on the equipment as"

‘ ‘ned. balls,” or red overlights: superimposed on -

digital. values appearing in the computer windows. ’

. Government’s Exhibit: A, Multiple Address Letter

No. 38-61, provides in pertinent part: as follows:

8 “Determination 0 Mest ‘Display Vii

“Phe desigh of the RVR data transmission ‘sys-

ebay se ensure 4 very high level of accuracy

Shick s transmitted to the. ‘AA displays, from

a Vipathen. Bureau office. guage it Js pos-,

errors. oceur at Me eyjuent Re

““Sntervals. "The RVR system uses 4 check

‘for the detection of' errors ‘in the ' aukeien

i of AWE ‘values: from’ the signa signal data’ earrere

“PLS

Spiselman to tell the Weather Bureau that‘ *** -

we, had these red balls on the equipment” and ask

the observer “* * * to check the equipment” (‘Tr.

1102) and to determine if the equipment was out of

service or malfunctioning. Bradley, the Weather. Bu-

_ Teau_ observer, aad the responsibility for determining

_ if the RVR was to be declared ‘inoperative”’.or con-

tinued in service (Tr..1829), WE ees

_ Plaintiff’s Exhibit 39, Part 400; p. 4-15, par, 481.1, _

Facility. Operation Manual, reads as follows:-..

/ 481.1" The U. S. Weather Bureat is :responsi-

‘ble: for Ste ak een aeennining the: opera-

USD Ser enthex” Bubsaa 12 nel ‘performing ‘meter

_} cand /or digital re checks: and shall:tequest

Dey ‘cheeks: !at:, any: hess aee ann bic og Ue

4 if

RE 8: 37 P.M., when’ ‘Bradley received ‘the: ‘report

of ‘red balls: from the Tower, he told thé controllers

ih the ‘Tower that two ‘Weather Bureau 'technitians,

Gill and Pursley, were’ on their’ way ‘to’ the ‘Tower

and: ‘advised the controllers to use his (Brailey’s)

RVR values for five minutes. Bradley. them walked

out into the hall to see if he could locate the tech-

_nicians who had just left his office. He was unable

to locate thera and made no further effort to contact

them. At approximately 8:37 P.M., or shortly there-

after, Bradley checked his digital display read-out

by converting the 1 issometer recorder graph

valué to an RVR value and then compared’ such

value with the RVR display. He found at such time

that the two values were consistent. The RVR values _

as conipared registered 10—which indicated a visual

range of less than 1,000 feet.

“Mr. Keepers, ‘the Watch Supervisor, again ealled

Bradley at approximately 8:44 and’ informed’ him

that the IFR Room RVR was still “‘red-balling” and.

that the technicians had not arrived. Following this

second call from: the Tower, Bradley declared the

entire RVR system “inoperative,” took it out of ‘serv-

ice‘and reported it, is “RVR NO” on the WBAN-10

A PUES Ex. 49). The WBAN-10°A is a form on

which a Weather observer recordd at regular inter-

vals all weather. observations including the RVR. —

At 9:30 P.M,’ approximately 45 minutes’ after the

RVR equipment was declared not available, Gill and

Pursley returned to the Weather Bureait office to

obtain | ‘additional tools for, their work and were ~

. advised. that the RVR was, red-halling. Immediately

thereafter, they. returned to the 8th floor equipment

ee ee ‘On arriving at the ,

equipmént room’ at ‘approximately’ 9:40 P.M. ‘they.

- found the RVR ites and va fl an inter-

Here mittetit minus sign. They: were’ able’ nestiasia the

* intermittent’ minus’ sign but’ could noteéliminate the —

\ * red’ balls’ (Tr. 2152). Gill and Pursley’ both testified

_ that’ they were working on this' equipment at'approxi- _-

mately 9:45 P.M., the time of ‘the ‘aecident; ‘that: it

was red-balling throughout this period ;’and that at

approximately 10:10. P. M. the red. tpreee ‘on the: ell

ment ‘disappeared.

The plaintiff edtitends that both Muvplies wid Brad-

ley ‘acted in a neglectful and’ unreasonable’ mariner’

and violated the controlling yernment régulations.

- Plaintiff also claims that pers did was’ to

report the appearance of red balls; that he did not

determine that the Tower displays were “inopera-

tive’’; that: he did not direet Spiselman'to report them

“inoperative” and he'did not at 8:44 report ‘the Tower —

VDU’s ‘to be “inoperative” (Tr. 1010-11); that’ al-

though Keepers suspected a “malfanetion” ‘in ‘the

RVR, af'no time did he’ compare ‘the IFR and Tower

Cab RVR values with each other or with the Weather |

Bureau observers’ values; that at no time did he

request that the.RVR be serviced or checked (Tr.

1120) and that this was a direct violation of See.

481:1 of the FAA Facility Operation. Manual), 3

‘The’ Government. contends. that Keepers: had no

3 discretion as to what he must ido when the red balls

; appeared on the equipment used by him‘ and that: he

. Was prohibited from using RVR values'that-appear in ~

conjunction with the red balls (‘Tr. 1008-13); eu eee

his, Court finds that plaintiff’s claim., of Keepers’ |

negligence: is unwarranted. Although there ig.no deny-

‘ ing the fact: that Keepers’ himself did not “specif-

ically” request a read-out’ check by ‘the’ ‘Weather =

‘Bureau’s obséeryer of the RVR, he did, throu the

-services af Spiselman, inform the Weather Bureau

observer, Bradley, that the RVR display unit was red- -

274-648-677

ry | . ghar 8

/ cot 50a

‘palling, Keepers’) primary...duty. isthe @iroum-

stances waa|to;notify, the Weather. Burean, ‘‘immedi-

ately’’ of'a,suspected ‘‘malfunctioning”..of the RVR.

This he did.; He was under no duty, to make: ‘any; tests:

concefning the RVR and acted in a reasonably prudent |

3 sores ErESe nntesing. Wt Se Ean ron

displaying red-balls..% |) .),

Bradjey’s digital display read-out and. the RVR dia-

play: values ;were)!identical. The RVR values trans- —

mitted. would have been of no help as they conformed

to Bradley’s display read-out: From 9:07 P.M. to 9:30

P.M, the weather. advisories transmitted to EAL 512

stated that the RVR. 4 Right was, inoperative. The

Government, was not negligent in declaring the RVR

inoperative. The. red-balling of. this unit necessitated

its nonuse as red-balling was a. positive. indication

that its: values ‘were dangerous to transmit to aircraft. ;

Of. utmost; significance. in determining the Govern-

ment’s liability: to| the plaintiff's deceased. is its re-

sponsibilities under the provisions of the following

regulation: *) |

-Cireular,.N, -the Government's Manual of Surface 7‘

Observations. Pitt's Ex; 41) :; edt tect AMSAT

0 Observer Renpibneibility Genoral Tak-

( > ing observations is in general, the primary duty ;,

iinid cof the observer, Unless otherwise instructed _

|: UPats2.0), nothing exeept th t ,

ai (ORE éffort |-tor takes: ithe “bbsetrations

rately ee ompletely fie

ble

sy ture of the ppeicorslagioal siwation it the star

ayy dion, wurt’s, er mphasis). 6. boii! At doy

\Governmient, is. also. under;.a. duty, to. issue es

| weather information ;to aircraft pursuant to the. pro-

visions; of Section,.265.2 of the, Air. Traffic. Control

Procedures. Manvel Loa) Ex. BD vioaeieg as

“Howe: it 2 geet atte Ae TES Est

4? 265.2 At. Rustions diate Thkiniaoeanan ou:

ports are obtained by .the controller neal

routine procedures and the ceiling and/or. eB

) or is reported as being at. or. below. the high

| fe ‘circling minima” established for the ote air-

Sah a + compa a: report 93 current weather

' eonditions, and’ ‘subsequent’ changes; as neces.

sary, shall be transmitted as follows: 4

; wo lecerom weds Me '

sernB, By approach control facilities; to ofall air

__ craft at the time of the first radio contact or as

1S soon as possible thereafter; and psstacddt?

~The action against the Government is 'tolttlded in

28°U.8.0. 1346 (b) which is what is’ ‘now well known

-. as the-Federal ‘Tort Claims Act: |

.. ‘Phe’ Governtiént' disclaims’ liability. tn. view of its

disclaimer provisions, it is ‘well ‘to ‘note’ the séquerice

of weather | hier issued ° me the" Government's

; Wedthier i ‘ cag, Pty (Mixorae Paka

"51D a roached’ the '

and. oaea't

to “a na

_ others have not.” At 9:23 P.M., EAL 512 was advised

| Mer oni was receiving “and disseminating’ weather re--

_ and in a loider than normal voice (Tr. 1283), an-

. were deteriorating and visibility diminishing. It was

62a

ARTCC advised, ““# * * some are inatling it and some

-are, not * * *,” and again, at 9:20 P.M., ‘“‘* * *.some

aircraft are. making ‘an approach successfully and

to contact Tdlewild approach anil came under the con-

trol ‘of Richard Ketterman, at the AR-1 position. At

9:30 P.M., Ketterman’s advisory to the crew of EAL

512 was visibility one mile. At 9:32:49 P.M., Joseph.

H. Kelley, the Air Traffic Control specialist coordi-~

rts to the ARTCC controllers in the IFR Room.

ey received a report from the Tower Cab co-

ordinator that the visibility had gone from one mile

- to three-quarters of a mile and, facing the controllers

nouneed this diminished visibility « to the pee

‘radar section. - yx.

Notwithstanding Kelley’ s ‘announcement at 9: 39 :49

P.M. that visibility had decreased to three-quarters of.

a mile, at 9:33:57 advised EAL 512 that

visibility was still one mile. This was the last message

that was sent by any government. employee in the

Weather Bureau or in the control tower to the crew

of EAL, 512, The crash occurred at 9:45 P.M. During

this period of approximately 12 minutes,-the crew of

.EAL 512 was not apprised of any -weather conditions

or change in weather conditions. During this period of -

time, the WBAN indicated to Bradley, the meteorolo-

gist, that the weather conditions at Runway 4 Right

the duty. of, the Government employees to relay to .

EAL 512 the information that the weather was de-

- terlorating and visibility was diminishing during this _ %

12-minute, period. If the crew of EAL 512 had been . |

advised that the WBAN indicated visibility was below

one-half mile anEIRE this period, it is a h dagen

53a

_ that the erew of EAL 512. might pare masseter the _

plane differently. It would have alerted the crew to.

_ the. changed weather conditions on its approach to

Runway 4 Right and it is within the realm of. prob-

ability that the crew would have been ready and. able —

to. make a missed approach sooner than they actually

did. Had EAL 512 been apprised of the deteriorating

weather and diminishing visibility, its eaptain might

have decidéd to divert to Philadelphia. At any rate, |

this Court finds the Government negligent in not re-

laying the change in weather conditions to EAL 512

_ from 9:33 P.M. to 9:45 P.M. ?

~The Government raises the issue that, even if the

Court finds it negligent and that the plaintiff is en-.

titled to a recovery against the Government, the plain-

tiff’s claim is nevertheless precluded by two statutory

_ exceptions to the Government’s waiver’ of sovereign

immunity under the Federal Tort Claims Act.

‘The Government cites 28 U.S.C. 2680 (a) and (h)

which reads as follows:

§ 2680. Exceptions . dione

The provisions of this i pter and section

1346(b) of this title shall iy apply to—

(a) Any claim based u act or omission

-of an émployee of the jvertinbent exercising

due care, in the execution of a statute or regu-

lation, * * *. rt emphasis.)

o 7 : 7 "hie

(h) Any claim arising out of * * * miis-

representation * * *,

This objection is not’ well taken and is overruled. .

There was no misrepresentation as to the weather be- -

tween 9:33 P.M. and 9:45 P.M. There was in fact an

omission on the part of the Government in failing to.

convey any weather report to EAL 512 during this ~

period. Subdivision (a) is vane We pandora ‘ex-

empts the Government from ability 1

Bde

. ‘of the Government was exercising ‘due care. The Court

finds from’ the facts that the employees ofthe Goverh-

ment ‘in charge of disseminating weather reports were

not exercising due care to the passengers on EAL 512

but were guilty of want of care.

The ~testimony indicates that nine planes lnvided

‘within ‘a 20 to 22-minute period prior to the-crash. —

Somé landed before’ 9:33 P.M., others thereafter.

This is not a complete defense. The negligence of ‘the

Government must’ ‘be ‘viewed with ‘regard to the’ rules

and regulations imposed upon it and the failure‘ of

_ the controllers to relay- the deteriorating weather

hie conditions from 9:33. P.M. to 9:45 PM 3 tHe

For ‘the réasons ‘set’ forth above, the Court finds

that the Government ‘was careless and negligent and

must respond " in damages to the plaintiff.

~The Court finds that Eastern was also careless

and negligent. The ¢rew of EAL 512 was cognizant

of the weather conditions existing at Runway 4 Right

and, although the Government was negligent for not

disseminating weather reports to EAL 512° between

9:33 P.M. and‘ 9:45-P.M., it does not absolve East-

ern’s radio at! Idlewild ‘froma apprising the crew of

EAL 512 as to the ‘true weather conditions just prior —

station was in close proximity to the Govérnment’s

Weather Bureau ‘at Idlewild and it was the responsi-

bility. of Eastern to. apprise .its own, crew of: what

the weather conditions were just prior.to the time

of landing. Eastern’s crew must also be held careless

and, negligent, in. ‘that, whether the weather conditions .

were, minimum or. not, . it-should have been ready’

and able to execute a missed approach in conformity

with the rules laid down by its own, company. |

the Court, ‘therefore, finds that the accident to the

pasa, ocenrred because, of, the eaneurrent careless-

55a |

‘ness arid tiegligence of Eastern Air Lines’ andthe:

United States of. America," _

....Bastern ‘claims indemnity against’ ‘the: (co

and the, Government claims indemnity against East-

ern. In’ view of the fact that this.Court-has held that -

bothiof these defendants were concurrently negligent,

_ neither is entitled ‘to’ indemnification ‘from the other.

, ‘That under certain circumstances ‘there ‘may be a.

right of indemnity is unquestioned., However, where

there.is an ‘affirmative duty. to -act..and where acts

of. omission .concur in eausing. damages,’ as.in the

instant ease, there ‘is no right of recovery: over. The

right of indemnity is also enforced in favor of one

tort-feasor against another jointly liable, ‘where¢ de-

_ grees of culpability. are. unequal. and. the second tort:

-feasor, in equity and justice, should bear the burden.

airplanes is United. Air, Lines, Ine..v. Wiener, 335

F.2d 379, decided June 24, 1964, by the United States

Court of Appeals for the Ninth ‘Circuit. A rehearing

was. denied . September 11, 1964, and certiorari, dis-

missed, 379: U.S.° 951. Wiener explores the question

of , indemnity in. detail, and allowed. indemnity to

United Air Lines.over as. against ‘the Government,

but the facts in that case are quite different than the

. Case: at bar. A jet airplane with a student pilot flying

almost blind came out of the sky ‘and collided with a

passenger United Air Lines’ plane.

.. The Court. in diseussing the Heory,, of indemnity )

‘stated (p, 398) : |

eles: onder'to effect and ce in ‘certain

te ‘gitar to fleet equity and tice in certai

mit exceptions, but the cases relaxing the fle

cannot: be entirely hasmustiond' or! reconciled.

and (p. 399); aa |

“i) ' These! {many catlis! ithéquentiy characterize

56a

the negligence of the indemnitor as ‘‘active,’’

“primary,” or “positive” and the negligence of

e indemnitee as ‘‘passive,’’ “‘secondary,” or

“negative.” Such characterizations have ‘been

criticized as being artificial, lacking objective

criteria desirable for predictability in the law,

. and various rationales have been proposed for

' allowance of indemnity in such cases. Thus, in-

‘demnification of a concurrently negligent tort-

feasor is. said to be based upon a disparity of

duties of care owed by the tortfeasors to the.

injured party, the doctrine of last clear chance |

.or discovered peril, a disparity of gravity of the

fault of the tortfeasors, or a combination of

The Court in finding that an allowance of indemnity

was warranted in Wiener, supra, held: :

United’s duty to appellees’ decedents was to

exercise the highest degree of care; the govern-

ment’s duty was to exercise ordinary care. The

government’s negligent acts occurred literally

from the start to the finish of this tragic inci-.

. dent. The cumulative effect of. these negligent

_ acts was to dispatch United flight 736 and the

_ government’s high-speed jet training mission,

conducted by a student pilot who was virtually

blindfolded and an instructor whose cockpit

preoccupati: ns were greater than ordinarily :de-

manded of pilots flying under VFR conditions

and responsibilities, into the same area without

warning to those in control of either craft. If

we. accept the government’s assertions, the gov-.

ernment’s pilots discovered United’s peril in

time to effectively respond but engaged in a

maneuver destined to encounter rather. than to

evade,.Contrasted with all of this is the finding

that United’s pilots, to some disputed. degree of

ility, could have seen the jet and, in dis-

charge of the obligation to exercise the highest

degree of care for their passengers, should have

seen and avoided the jet. In view of the dis-

57a

parity of duties, the sas diapartty of. culp-

ability, the likely operation of the last dae

chance doctrine and all the surrounding cireum-

stances, the findings that United and the gov-

ernment were in pari delicto are clearly

erroneous and-we hold that there is such dif.

ference in the contrasted character of fault as

to warrant indemnity in favor of United in the.

nongovernment employee cases. [p. 402]

The case at bar is ‘distinguishable site the’ Wiener.

case, supra.

In view of the fact that the Court ia ruled that

this accident was caused. by the concurrent negligence -

of both Eastern and the Government, there cannot be

-any indemnity from:one against the other. :

The parties may submit any findings of fact and -.

conclusions: of law which they desire to submit, to-

gether with a decree in accordance with this opinion,

within ten days. | <

- MatrHew T. Aprvzz0,

U.S.D.J.

_ Nore.—This Court has tried to expedite this opin-

ion due to the fact that there are 36 cases still pend-

ing as a result of this aircraft crash. If either de-

fendant seeks a review of this decision, the appeal

. should be perfected for the October Term in that the

Court of Appeals’ determination may dispose of the

36 actions. This Court is of the opinion that if an.

application for a preference is made for said Term it

will be granted.

Prwrrewns

ee |

3 Apormowas FINDINGS. OF Pace AND Gee asaiee or

Law

United states District Court for the Eastern District

‘of N ew York tet:

* econ a. ree eal mil tae te cg

Faun. 8. Letigemerornstercacam ;

nn Arr LINEs, oe DEFENDANT or

| Ca-Oayper? 1 ht Fat

Grace A. InaHaM, a8 ExecuTeix or ‘THE EsTaTe oF

Paut B, IncHam, Deceased, anp Rrra FReepMan,

Bey 48 ADMINISTRATRIX OF THE Estar OF MILTON FREED-

MAN, DECEASED, PLAINTIFFS

“e 2 ~ iW. ‘

Untrep Srares or‘ AMERICA, DEFENDANT

aol The Court's, opinion, . dated roe ed May 26,

1966 constitutes the Findings of Fact and |

of Law, herein, supplemented by the followi

B. The Court makes the following additiona

ings of Fact and Conclusions of Law: /,....

1, ne ecaihent athieh, de, the. aubionssmntaar.al thie

action was caused bythe concurrent negligence of the.

two defendants, Eastern :Air Lines, Ine., and United

States of America.

(80a)

Ss rr

9 seer ree 60a ‘ ;

2. Defendant Eastern Air Lines, Inc., (hereinafter

referred to as Eastern) was negligent in failing to 3

properly ‘exercise a missed approach procedure when ( .

adequate ‘visibility and alignment. with the runway

was lost. |

8. Defendant Eastern. was negligent in. continuing

its approach after losing visual reference and/ or align: ,

ment with Runway 4 Right.

4. In failing to immediately ‘discontinue its ap-

_ proach after losing visual reference and/or alignment,

- defendant Eastern violated the instructions and the ~

_ procedures set forth in the Eastern Flight Operations

y & Flight Navigation Manuals. .

_ 5, Eastern’ was responsible for the safety of the. pas-

sengers, and in descending’ below its minimum author-

ized altitude and to an unnecessarily low and danger-

ous altitude it violated Civil Air Regulations 40.351(¢) .

and its duty to its passengers. 7

6. When the crew of EAL 512 finally determined to

exeeute a missed approach, the crew deviated from —

the required missed’ approach procedure established

by Eastern and set forth 3 in EAL’s Flight Operations

Manual. |

7. The crew of EAL 512 negligently and improper-

ly executed the missed approach procedure. a Se 4

8. Continuing the approach to a low and dangerous

altitude after losing visual reference and alignment

was a contributing and proximate cause of the crash.

the attempted missed approach was a contributitig and

proximate cause of the crash.

10. Between 9:33 and the time of the crash at 9:45

weather at Idlewild was deteriorating and this infor-

mation ‘was known to the air traffic controllers, em-

ployed by defendant Wuited eae of America and

6la

‘Wistert Air Linea, and was, in every sense, available

for commuication to EAL 512. |

11. Prior to 9:36 P.M., government anplotebs ‘hed

determined thatthe ‘visibility: conditions at iawn

had deteriorated.

12. Prior to, 9 :36, government employees at Idle-

_wild determined : |

| (a) that. visibility ébserved from the tower had .

- deteriorated from 1 mile to % of a mile; :

. . (b) that .visibility observed by the Weather,

Bureau -Observer 35 feet above the’ ‘ground had

deteriorated from _% to % of a mile; and

_ . (e) that. the amount of sky- ébscured by fog

and clouds had increased ‘from 2/ 10 6: 8/10 oe

the sky. .

13. The government panes: a t anty to the: passengers

aboard EAL 512 to provide the crew with accurate,

current and up-to-date weather information. ,

14. The government owed a. duty to the passengers

aboard EAL 512 to inform the crew that during the

13 minutes between 9:32 and 9:45 that oe, ristelity

and weather at, Idlewild was deteriorating.

15, The government’s air. traffic controllers, . pur-

suant to the Air Traffic Control Progedur

had a duty to passengers aboard EAL 512 provide

| the exes with, “current weather conditions and subse-

quent changes, as: necessary”.

16. The air traffic controllers, employed by. a .

United States ‘at’ the Idlewild’ tower, ‘who were in

_ communication with EAL 512 knew that the visibility

from the tower cab had deteriorated. from one’mile

to three quarters of a mile. Despite this the visibility

of one mile was negligently given to EAL 512. ,

17. The air traffic controllers, employed by. the

United States, who were in communication wi

EAL 512 knew that the tower visibility had de-

ef,

teriorated: from 1 mile to % of a mile, that the

visibility observed by the Weather Bureau Observer

_ . + thad déteriorated from to-%4 of a mile and that

‘the amount of sky obscrued had increased from 2/10 .

ite this, they negligently: failed to give

tion to EAL 512,

urt concludes that the government em--

i tly. failed to provide the crew of EAL »

necessary changes.

19. The Court MESS that during the critical 13

minutes, of EAL 512’s approach, the government em-

_ -ployees negligently failed to provide the crew of EAL

‘ 512 with accurate, current and ‘up-to-date weather °

information.

20. The Court concludes that during the critical 13°

minutes of EAL 512’s approach, the goyernment em-

ployees neghgently fdiled to provide the crew of EAL

512 that ‘the weather and visibility, at Idlewild was

deteriorating. '

21. The’ Court concludes that the negligent failure

_* the government ‘td inform EAL 512 of the deteri-

: weather and visibility at Idlewild during the

: ‘final 13 minutes of the approach was a proxi-

mate and et cause of the accident. =

“Marrnew T, Asrvzzo,

| United States District J udge.

| i% Dated: As fsklom, NY., atta = ts 196

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.