# Petition for Writ of Certiorari — O'Bery v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0834%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 389 U.S. 978 ## Text é a2 . $ ‘ | ; rm *4 ’ °# borrctitiot }j—enaet> aaa : 5 ert Se ae Cont ‘Vahem dL MSy Gees f : My Td i $$ ,65 Nite NOISY F sso 1 / A ‘ ; ? e « ‘ a, SO eee, _ 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- : j a - 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/-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 ry | 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» 14 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 16 ‘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 a 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. II “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 21 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 ) \ ‘ 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: 30 - 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 » 32 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) 4 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 v. 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. ~_ 3a 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... - 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 o 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: Sing dene tower &. Neustadt, involved idww iniaoourate:building appraisal by’ ‘the’ Federal Housing Administration (BHA) which cmap ‘Mimited: the’ olds jate “ae om gat WA ‘ : 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 = the Coast the eiban haed te ieee oft, 0) BP saeiripmncney at wort but Naver gy comet A ye rd tant fen he ian et om eater ae Pe a t Beaty Ff $3. (Gf He: 69 Ties AS t Fe. Bone Soto gee ~ Ga oh Seay Te eee ¥ ie * ¥ t ti igs ris ta © ; re "% wie. eee? tic. . ont + ity: ate 3 Belek YF te Artt iy f ' pitt er] or at ‘ r E é. L 4 J ed F. wx as 2 . tit 06% i raat; re Sect ince istrit cont ont io the i a2 ne yong a ie £ Misr tak vy a my : #) eol9 osle iy VOL L ewOT Te SAL . » perishe gees, the a aki to esoaePARt adit ti Se ca from the’ available’ ‘evi- ter n the 7 iets wreckage) and’ from f 1 drawn from such evi- £¥545 reer set SgeAT* s hives of its nal atid? ait gatety. eee bc- ie eras sor ah eotild vo . ° : . é Fe , ‘ . Se . 2 a, - . - ap ei moe si Sante = ee = —— - mn a 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 . Affirmed. ns et Cawk fin ee Pie ey os o { 4 & . fr = [> ; i ae sg ' * ‘ if . -s rs : ° ‘ / 5: : k I A 4 ad ; , ; x . oe 3 3 eR See . ‘ ° : ; = BEAST Bind sv .f9765 lf eral ; $ fied Shoe 8. A9FOF LESS ae sich: BOTA 46 ial Jo , OT EOE atlas “tM ploasaitio} dod to sotsgiven dt dsr ae bo pk ede . : + j st KE S19 W oat “spilt Sea Inion abv 3ugbinis aft. ™ : Scthits Bat ob behing 2 se TosioH, eisil Riis obs tbe: “gsthaq edt YO. fib bawoiver VUbIGss syed oN OSS RTA agbirk #62 quai roast itt rr z a # ? 4% pe oe vhf $37 * J at ¢& so elaled Tit | 3 . : iit eee Oa ies ; a> tvs 4 - pee ate es By Ms 4 ‘a 3 . ‘ ° 8 ‘ . $ ; ° J + ~ fn 1 ; - . F * + . ‘ . PR oy ie * ’ . aed . t . o ‘ ; ‘ gt ge. ? ow ee . 4 ‘ *- te \ * ~ rete ers i, i Rae ~ ‘* re Be { ee ne *f y ~ . 72e.8 ~F ‘ 2 f » * x . . . . . - F, . . . * . . * s. . ‘! sc * a > ‘ a Vibe. Ad a a = | " Fasouvos oF ees ‘Amp: , Coser, oF kot ati AAW AnD, dadegat sts bo 5, eked A A a u . aes _ sts 5 ri Py ki > United one Distviet seit for “is Eastern Distriet ; ot New Bees Pe a er os May 26, 1966. So 90% 7h | Grace +e Tartan; AS Hiaistinin!| ‘oe te ‘Esrate oF Pact B. ‘IncHaM, ‘Dronasep, PLAINTIFP ghee Vets f ae | Ragman Am Lam Barer Baty) : _ Bremmpetier baits Loe. aida A. trelig As Witdhousiis’ oF THE ae OF - Paut B. AnouAm, Duma, et An | Un Sram oF Aagace, Serene Ppthices: iinjys rer D. Te ntiis aetion wad itibited et Boer ofthe Hatta of Pal. Than, ened ver , fal death ‘on No- 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. as 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 3. . 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 ‘ 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 SS ORLA itttoos hat ef ) aba Ccdiinde debabotiiti wie $1 Miia sh ibs: 2 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: TVG VETER of . Lf “pet ae aB7 ey Proc ie ce wu Ovena recommended as inh 0 ‘pays mn own a BAY? Syesoy “9 Fi) cs sa ha Spm ro Aa) AE ftexit 4 ef. ar 0b WE) to0k.03 wae b-— FB 243-87" Soot Sana te ae in a 4 ae Pgieg 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). — that at the time: of initial impact of EAL 512 (1) the © 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 i. 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 85 eS 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 o a 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 2 way lights themselves. The runway lights ‘were per-. pendicular to the green threshold. lights and. were -more or less headed, in the same direction as the © 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 3,760, feet, prior to the point of initial impact. © ~ ‘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-, e, 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 oe 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- a 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 4 _ 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 — to the time. they were to, land. Eastern’ 3. weather © 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. -. Ae Fecent case involving the negligent operation of © 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 ; v. 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. 9. The erew’s negligence and improper execution of © 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0834%3A1. Public record. Not legal advice.