Petition for Writ of Certiorari — Montgomery v. Goodyear Aircraft Corp.

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SUPREMGS COURT. & & © 23 es

JUL 8 1968

| | | JOHN F. DAViS, CLERK

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Supreme Court at the United States

OCTOBER TERM, 1968

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f, RutTH Mostvacsenny, as Executrix of the Estate of

| ‘Orion V. Montcomery, etc., et al., .

Petitioners,

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GoopyEaR AIRCRAFT CORPORATION.

: PETITION FOR A WRIT OF CERTIORARI TO THE —

; UNITED. STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

|

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Harry H. Lirsie

acta 100 Church Street

New York, N. Y. 1007

Attorney for Petitioners

Harry H. Lipsie

RicHarpD S. PERLES

JACK STEINMAN

On petition

~ Dated July 2, 1968. —

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INDEX

' | PAGE

Jurisdiction ....... Peer rere reese eee eee eee 3

Applicable Statutes ... : peceunee uae . eaoee er . 3

Question Presented .... moe eeueaw ues ee eres 4

‘Statement of the Case .... ors e Sieucknerseeues 4°

Reasons for Granting the Writ ............-- aaenn 5

Grusiesinn Sa Serre ee eee aes 8

Appendix at udgment of United States District

QING. cas vanseeetsecevcesess aecccvesstecesics 9

‘Appendix ‘seats Proposed Findings of

FOS .cccess Jee eeee sence eee eeeeeees mel

Aypaslix C—Opinion of District Court .cicsccrcee

_ Appendix D—Opinion of. Court of Appeals-. err e 39

Tabu OF STATUTES

Rule 52(a) of the Federal Rules of Civil Procedure . 3, 5, “a

Supreme Court We OD vc dcivcwccsesss Rey ere 3

Title 28, U.S.C.A., Section 1254(1) ...0....eee eee. 3

Tass or CasEs |

- Continental Connection Corp. y. Houston’ Fearless

Corp, 350 F. 2d 183 (9th Cir. 1965) &......... 7

1 FRD 83 Improvements on Statement of Findings of

Facts and Conclusions of Law. By Hon. Merrill

E. Otis; United States District Court Judge, at

_ the Judicial Conference of the Eighth Circuit at

Kansas City, Missouri, Jan. rere

Maher v. Hendrickson, 7 Cir. 1951, 188 F. 2a 700 :

Matton Oil Transfer. v. The Dynamic, 123 F. = 999

(2 Cir. 1941) . se cece eee cert eee eeeeseceenteees

Law Raview ARTICLES

51 Cornell Law Quarterly 567° (1966) William: A.

Kaplin, Fed. R. Civ. P. 52(a): The Role of Coun-

‘sel in Preparation of Special Findings of Fact,:

Roberts v. Ross, 344 F. 2d 747 (3d Cir. 1965) ..

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Peles rstesiejescspnmressieacrt ee

_ . PAGE

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6,7

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Supreme Cort of the- United | States

_ OCTOBER TERM, 1968”

Rutu Monrcomery, as Executrix of the Estate of - ;

Orton V. MontTcomery, etc., et al.,

; ner | Petitioners,

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. -Goopyear Arrcrart Corporation,

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PETITION FOR A WRIT ‘OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

. THE SECOND CIRCUIT

To THe Honoraste Carer Justices:

‘The petitioners, Ruth Montgomery, as Executrix of the

Estate of Orion V. Montgomery, deceased, Mary Lucille

Pipes, Administratrix of the Succession of Robert Hugh

Pipes, deceased, Margaret Anne Rosley, Administratrix of

the goods and chattels, rights and credits which were of

Frank James Rosley deceased, Lila Lee Thompson, Tem-

porary Administratrix of the Estate of Steve Barton

Thompson, deceased, Barbara G. Leonard as Adminis-

tratrix and prosequendum of the goods, chattels and

credits which were of Robert Edward Leonard, deceased,

aid Alig Meret ERLE OL ITE EEE TOR INE VL AE A aR tent i atahie A eT oe

- - - . . a ied enn —_ 2. ~ -

2.

' Nancy Mae Turner as Administratrix of the Estate of

Edward E. Turner, Jr., deceased, Freda M. Furney, as .

administratrix of the goods, chattels and credits which

were of Frederick Allen Furney, deceased, Maureen Clap-

per as Administratrix of the goods, chattels and credits

which were of Richard H. Clapper, deceased, Vincent E.

Godbold as Administrator of.the Estate of Henry Vincent ©

Godbold, deceased, Catherine R. Coutu, as Administratrix

Ad Prosequendum ‘of the Goods, Chattels and Credits

which were of Leo Joseph Coutu, Deceased, Late of Ocean .

County, and Laurice Sanink as Administratrix ad prose- ©

quendum of the goods, chattels and credits which were :

of. Joseph J. Saniuk, deceased, pray that a Writ: of Cer-

tiorari be issued to review the decision and judgment of

the United States Court of Appeals for the Second Cir-

cuit filed April 10, 1968 uffirming a final decree entered

in the United States District Court for the Southern Dis- .

trict of New York on June 14, 1967, upon the: opinion of

Irving Ben Cooper, District J udge.

‘The opinion of the Court of Appeals Appendix D of this _

petition is not officially reported. The opinion of the

._ District Court by Irving Ben Cooper, District Judge, dis-

' missing the libels is set forth in full at pages 153a through

- 160a, inclusive, of the appendix for the ibelants-appel- |

- lants in the. Court below. It is meres herein at dae ,

_ pendix C.

Ain ‘gupilie- 5 Bihihvhd cthdhendgs ae toa ee ee

Jurisdiction

The jurisdiction of this Court is invoked pursuant to

the provisions of Title 28, U.S.C.A., Section 1254(1). The

judgment of the Court of Appeals affirming the decree

“dismissing the libels was entered on April 10, 1968, the

‘appeal having been argued on February 21, 1968. Said

judgment is contained in or A hereof.

Applicable Statutes. aby |

Rule. 52 Subdivision ‘(a) of the Federal Rules of Civil

Procedure:

Findings by the Court:

(a) Effect. - In all actions tried upon the facts with-

out a jury . . .-the court shall find the facts specially

and state separately its conclusions of law thereon .

-. Findings of fact shall ‘not be set aside unless clearly.

erroneous, and due regard.shall be given to the oppor- .

tunity of the trial court to judge of the credibility

‘ of the witnesses . . .

Rule 19. “Revised Rules’ of the Supreme Court of the’

United States:.

Considerations governing review on certiorari.

-1. A review on writ of certiorari is not a matter of

right, but of sound judicial discretion, and will be granted

only where there are special and important reasons there-

for. The following, while neither controlling nor fully

measuring the court’s discretion, snionte the character

of reasons which will be considered: ;

(b) Where a Court of Appeals . » . 80 far sanc-

tioned such’a departure by -a lower court, as tu call

for an. exercise of this court’s power of supervision.

Question Presented

Whether this Court, in the exercise of its supervisory

_ powers, should permit a judgment to stand when the

Court below itself expressed the wish that the proof as to

' the cause of the disaster were more convincing; and this is -

- superimposed upon the District Court’s substantially ver-

batim adoption of the proposed findings of fact submitted

by counsel for ona side?

ement of the Case

On July 6, 1960, a clear, summer inten, the United

States Naval’ Airship, Reliance, ZPG3W, Buono 144242

(hereinafter referred to as the ‘‘242’’) crashed into the

Atlantic Ocean off Barnegat Light, New Jersey. Twenty-

one officers ar ’ were aboard the ‘‘242’’. Three sur-

vived the cras. _ vhs

The Trial Judge had one basic question to decide:

Whether the tear, in and.along the top center seam of the

envelope, occurred during flight immediately before the

crash, as appellants contend; or whether the tear occurred

upon impact with the water, as respondents contend.

Implicit in this question were two subordinate ones:

Whether Lieutenant Joseph J. Saniuk, the Patrol Airship

Commander in charge of the ‘‘242” and one of the Navy’s

most highly qualified airship pilots, and his entire crew

consisting of pilots, other flight officers, and highly trained

enlisted men, were negligent in failing to observe the ma-

nometers, other warning devices, and flight characteristics

of the airship to avoid flying the ‘‘242’’ into the Atlantic

Ocean? Or whether the respondent was negligent in the

manufacture of the top center seam of the envelope caus-

ing it to burst without warning over the Atlantic Ocean

in mid-flight? .

.

Both appellants’ and respondent’s experts agreed that

the seam in question was stronger than the fabric pieces it

joined. The Naval scientific investigation team ‘and appel-

lants contended that the 133 foot tear originated in a 40

inch opening in the seam. The respondent contended that

the tear started in the fabric adjacent to the seam, pro-

gressed into the stronger seam for thé 40 inches, and then

left the seam and continued to tear the envelope fabric.

This contradictory, ever-shifting testimony found “favor -

| with the trial judge.

Despite serious discrepancies in the testimony of re-

spondent’s experts, the trial judge rendered a decision in

favor of the respondents. The trial judge then accepted —

verbatim, with the exception of an innocuous 22 word

phrase dealing with the appellants’ failure to prove free-

dom from contributory negligence, -all of respondent’ Ss.

‘findings of fact and conclusions of law. These findings

are annexed hereto as Appendix B.

‘Scies for Allowing the Writ of Certiorari,

The Trial Judge’s swallowing whole of the respond-

ent’s findings of fact and conclusions of law evidenced a

complete abdication of the fact finding duty of the Court -

as imposed by Rule 52a of the Federal Rules of Civil

Procedure. >.

The Court of Appeals in the instant matter was fully

@ aware of the trial court’s failing and wished that more

convincing proof of the cause of the disaster had heen

elicited :

‘*It would be more helpful to us on review, however,

and would give us greater certainty that the result was

correct and reached after careful and thoughtful con-

sideration of all factors, if detailed findings and con-

S

clusions were reached: by the judge himself rather than

wholesale adoption of those submitted by counsel. See

Matton Ou Transfer v. The Dynamic, 123 F. 2d 999

(2 Cir. 1941). F. R. Civ. P. 52(a), 5 Moore, Fed. Prac-

tice {] 52.03, p. 2632: ‘The purpose of findings of fact

and conclusions of law is to aid the trial court in mak-

ing a correct factual decision and a reasoned applica-

tion of the law to the facts; to define for purpose of

res judicata and estoppel by judgment the issues then

adjudicated; and to aid the appellate court’.’’ (R. 1856,

footnote 3, Appendix D, 42, 43, footnote 2.)

Many astute commentors have long recognized the evils

inherent in the district courts being able to set forth as their

own the findings of fact and conclusions of law submitted

by one side—presumably the victor:

‘‘To be properly understood and applied, however, it

requires three qualifications: (1) Proposed findings

should never be uncritically accepted. Mechanical

adoption rather than in toto adoption, is the real vice.

The trial judge should always make his own findings

_ in the course of his decision making process -and

should use them as a basis for studying.and, if neces- |

sary, revising those of counsel. (2) Before asking an .

attorney to prepare special findings, the judge should.

indicate to him the factual and legal basis of his deci-

sion. (3) The judge should not make a practice of

adopting the attorney’s findings verbatim. Only when

counsel’s findings are substantially as his own would

be if he took the time to draft them should the judge

accept them without change. A judge, of course, can

never know for certain what his precise findings would

be unless he does actually draft them. But by study-

ing the notes of tentative findings he has made during

the trial, and comparing them with counsel’s proposals

(including those of opposing counsel, if any are sub-

‘a Gad

7

mitted), the judge should be able adequately to deter-

mine whether or not the draft of counsel is substan-

tially in accord with his own views of the case.”’

(William: A. Kaplan, Fed. R. Civ. Proc., 52(a):

The Role of Counsel in Preparation of Special

Findings of Fact: Roberts v. Ross,.344 F. 2d 747

(3d Cir. 1965). 51-Cornell Law Quarterly 567).

Findings of fact on every material issue are a fundamen-

tal requirement. The findings must Support the ultimate

conclusions reached by the Court. This is especially true

here since the Court of Appeals relied on the Trial J udge’s

opinion for the cause of the disaster.

The ultimate test as to the propriety of findings is

whether they are sufficiently comprehensive to provide a

basis for decision and supported by the evidence (Maher v.

Hendrickson, 7 Cir. 188 F. 2d 700, 702). :

The findings of fact herein do not support the: Trial

Judge’s opinion. The Trial Judge, in his opinion; stated .

that he placed great weight upon the testimony of certain

of the respondent’s eyewitnesses and experts. A perusal

of the record indicates that these witnesses tied themselves _

into contradictory knots. Yet this is the sort of testimony

that found favor with the Trial Judge—and gave the Court

of Appeals such doubts as to the cause of the crash.

A District Court Judge has the duty to carefully con-

sider, weigh and determine the accuracy of the proposed

findings and whether or not they are supported by the evi-

dence (Continental Connection Corp. v. Houston Fearless

Corp., 350 F. 2d 183, 187). ;

The Hon. Merrill E. Otis stated on the subject of improv-

ing the process-of the District Courts making findings of

fact and conclusions of law: .

“Tt seems to me that the statement of findings and

conclusions is of the very fGsence of the judicial func-

I I ls

8

tion and that it should not be surrendered by the judge

» to counsel, however able . . . It is impossible for coun-

sel in a case in which they are engaged to do anything

impartially. They are bound to color findings they sug-

. gest...’ (1 FRD 83, 85, January 6, 1940). ~

Conclusion

This action was tried solely on the question of liability

for the crash. Involved in the question of determining

liability were a myriad of factual’ questions.

The trial lasted continuously for: 3 weeks.-This was a case

which demanded that the Trial Judge make detailed find-

ings of fact because of the contradiction among the various

eyewitnesses and experts.

The Court of Appeals pointed out its unhappiness at

having to decide this case without detailed findings made .

independently by the Trial Judge.. The findings of fact ,

submitted by the respondent and virtually adopted in toto

by the Trial Judge failed to aid the Appellate Court; and

' was an abuse of Rule 52(a) of the Federal Rules of Civil

-Procedure. °

For these reasons, the petition for a Writ of Certiorari

should be granted.

Dated: New York, July 3, 1968.

Respectfully submitted,

Harry H. Lirsic,

Attorney for Appellants.

e | 9

‘© APPENDIX’A

| Judgment |

UNITED STATES DISTRICT COURT

SouTHERN District or New York

62 Adm. 681 -

62 Adm. 682

61 Civ. 798

+.

ad

[SAME TITLES]

+

-

The above entitled actions having been consolidated for ,

all purposes, and the issues having come on regularly -

for trial before the Honorable Irving Ben a United

States District Judge, ,

non-jury on April 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24,

25, 26, 27, 28, and May 1 and 2, 1967, and ‘the Court hav. :

ag granted the motions of the defendants The Goodyear —

Tire-and Rubber Company:and Edwards Company, Inc.,

to dismiss the complaint as to. them, and the Court at the

conclusion of the trial having reserved its decision as ;

to the remaining defendant, and the Court thereafter on

June 15, 1967 having filed its memorandum opinion in

favor of the defendant Goodyear Aircraft Corporation,

and having directed that findings of fact and conclusions

of law‘be submitted, and findings of fact and conclusions

of law having been signed and filed on June 30, 1967, it is

ORDERED, ADJUDGED and pEcREED: That the actions as to

the defendants The Goodyear Tire and Rubber Company

and Edwards. Company, Inc., are b hereby dismissed, and

it is further —

ORDERED, ADJUDGED and DECREED: That the defendants

Goodyear Aircraft Corporation, Goodyear Tire and Rub-

10.

Judgment. ,

ber Company and Edwards Company, Inc., have judgment

against the plaintiffs Ruth Montgomery, as Executrix of

the Estate of Orion Montgomery, deceased; Mary Lucille

_ Pipes, Administratrix of the Succession of Robert Hugh.

Pipes, deceased; Margaret Anne Rosley, Administratrix.

of the Goods, Chattels, Rights and Credits which were of

Frank James Rosley, deceased; Lila Lee Thompson, tem-

porary Administratrix of. the Estate of Steve Barton

Thompson, deceased; Barbara G. Leonard, as Administra-

trix Ad Prosecequedum of the Goods, Chattels and Credits

which were of Robert Edward Leonard, deceasd; Nancy

Mae Turner, as Administratrix of the Estate of Edward

EK. Turner, Jr. deceased; Freda M. Furney, as Admin-

_. istratrix of the Goods, Chattels’ and Credits which were

of Frederick Allen Furney, deceased; Maureen Clapper, as

Administratrix of the Goods, Chattels, and Credits which

were of Richard H. Clapper, deceased; Vincent Godbold,

as Administrator of the Estate of Henry Vincent Godbold,

deceased; Catherine R. Coutu, as Administratrix ad prose-

quandum of the goods, chattels and credits which were of

Leo Coutu, deceased, late of Ocean County and Laurice

Saniuk as Administratrix ad prosequandum of the goods,

chattels and credits which were of Joseph J. Saniuk, de-

ceased; dismissing the complaint, and it is further

OrperED: That the Judgment entered herein on July 13,

1967 contained an error as it did not provide for all

parties herein, and that said judgment be and her a

- -vaeated.

Dated: New York NY

July 18 1967 ©

: 7 Joun J. OLEAR, JR.

Clerk

Approved:

Irvine Ben Cooper

U.S. D. J,

iy

of

11

APPENDIX B

Respondents’ Request for Findings of. F act t and.

Conclusions of Law |

UNITED STATES DISTRICT COURT

Soutuern District or New York

62 Adm. 681

62 Adm. 682

61 Civ: 798

7%

{SAME TITLES]

2

od

. Pursuant to the Court’s direction set out in the Memo-

™ pale of the Court dated June 14, 1967 and filed June

15, 1967, respondent Goodyear Aircraft Corporation here-

with submits its Request for Findings of Fact and Con-

clusions of Law, as follows:

FINDINGS or Fact

The Parties

1. On July G, 1960 ZPG-3W Airship United States Navy ._

BuNo 144242 (the ‘‘242’’) crashed into the Atlantic ocean

off the ’coast of New Jersey. Highteen of twenty-one

‘service men aboard were killed. Libelants are the repre-

‘ sentatives of eleven of the deceased servicemen and bring

suit for their wrongful death. The libelants, their re-

spective decedents, other claimants on behalf of whom

libelants claim, and their relationships to their respective

decedents, are as follows:

Libelants’ Decedents ee Other Claimants Named

and Naval Rank ._ Libelants and Relat- in Libels and Relation-

| or Grade lationship to Decedent — ship to Decedent

_ Richard H. Clapper, Maureen Clapper, Cheryl Joanne Clapper,

| LT JG, USNR Wife Minor Child |

|

“4; : e

12

| Respts’ Request for Find. of Fact and Conclusions of Law

Inbelants’ Decedents

~ and Naval Rank

- or Grade -

Leo Joseph Coutu, .

, GM-1/AT 7

Frederick Allen

Furney, AMS-2

Henry Vincent

@ / Godbold, ACWAN

Robert Edward

Leonard, LT JG,

USNR

Orion V. Montgomery,

LT, USNR

Robert Hough Pipes,

ENS, USNR

Frank James Rosley,

AT-1

Joseph J. Saniuk,

LT, USN ™

' Steven Barton Thomp-

son, AD-2

Edward E. Turner,

Jr., ACW-2

Iibelants.and Relat-

lationship to Decedent

Catherine R. Coutu ©

Moss,. Wife

Freda M. Furney

Albright, Wife

Vineent E. iGodbold,

- Father =~

- Barbara G. Leonard, William Leonard,

Wife

Ruth Montgomery

McFarland, Wife

Mary Lucille Pipes

‘Keele, Wife

Margaret Anne

Rosley Carlson,

Wife.

Laurice Saniuk,

Wife ,

Lila Lee Thompson,

Mother .

Nancy Mae Turner

Fedoruk, Wife

Other. Claimants N

in Libels and Rela

ship to Deceder

Leo Coutu,

Minor Child

Andria Diane Furne

» Minor Child . ©

Mary Godbold,

Mother

Minor Child

Vern Orin Montgon

Craig Allen Montgo

- Erie’ Leigh Montgo

— Louise Montg

Kim Ilene Montgo

Marcia Marie Mont

gomery,

Minor Children

Lisa Ann Pipes

Minor - Child

Elien Rosley,

- Judith Rosley,

Minor Children

Walter B. Thompsc

Father

Jerry A. Thompson.

Brother .

Beverly Jane. Thon

Nancy Sue Thomps

Burnett, Minor Sist

Diane Lyn Turner,

Cynthia Dawn Tur

Minor Children‘

ned

o”

teed

13

Respts’ Request for Find. of Fact and Conclusions of Law

2. Respondent Goodyear Aircraft Corporation (““Good-

year Aircraft’’) is a corporation organized and existing

under the laws-of the State of Delaware and has its princi-

pal place of business in Akron, Ohio.

3. In the period of 1954 to 1960, seins Aircraft

was engaged in the business of designing, manufacturing |

and selling pressure airships to Navy specifications for °

_use in airborne early warning, or radar detection of ap-

proaching hostile aircraft, and other defense missions.

4. Goodyear Aircraft designed and manufactured the

242 pursuant to cost-plus-fixed-fee contracts with the

United States and Government specifications prescribed in

these contracts and related documents.

5. Respondent The Goodyear Tire & Rubber Company

(‘‘Goodyear Tire’’) is a corporation organized and exist-

ing under the laws of the State of Ohio and has its prin-

cipal place of business in Akron, Ohio.

6. In 1956 responderit Goodyear Tire was engaged in

the business of processing, distributing and ' fabric

for airship envelopes.

7. Respondent Goodyear Tire processed the fabric for

the envelope (designated D-619) of the-242 pursuant to |

specifications approved by the Navy Department. The

fabric was processed at Akron, Ohio, inspected, fagged,

packed in rolls and shipped to respondent Goodyear Air-

craft in Litchfield Park, Arizona.

8, ‘Respondent Edwards Company, Inc. (‘‘Edwards’’)

is a corporation organized and existing under the laws of

1 RL ge THe NBER REY ARR RR RINE PN, SMe ONT, OO ays CNET

——- — ~ - pee SEO nd> os ~o &

Respts’ Request for Find. of Fact and Conclusions of Law _

the State of Connecticut and has its principal place of

business in Stamford, Connecticut. _

9. During the period of time herein material, Edwards -

was in the. business of manufacturing, distributing and

selling warning bells suitable for use in aircraft.

10. On J uly 6, 1960, the 242 contained a helium low

_ pressure warning system, one component of which was a

J-3 Bell manufactured by-respondent Edwards. The use

of this type of bell in this system had been expressly ap-

_ proved by the Navy. |

ZPG- 3W Airship BuNo 144242

11. The 242 was the prototype of a new advanced class

ZPG-3W of long-endurance airborne early warning weap-

ons developed and procured by the Department of the

Navy for its use in conducting the defense of the United

States, pursuant to a mission designated, as that of other .

Nayy advanced weapons systems, by the Office of the Chief |

of Naval Operations. It was 403 feet long, had a total

weight of about 83,000. pounds, and had a theoretical

envelope volume of 1.5 million cubic feet. The airship .

‘represented an advance of the state of the art in terms of

its much greater size than that of previous airships, over- .

all structura] and component characteristics and perform-

ance, and, in particular, the stress analysis, size, design,

. and structural features of the envelope and its seams.

The construction of the D-619 prototype envelope in-

volved new fabrics, a new thread combination, the use of

a cement which was still developmental, and required a

‘number of technical advances in production techniques.

1b

Respts’ Request for Find. of Fact and Conclusions of Law

‘The automatic air pressure system also incorporated many

unique features, and the ‘electronic and electrical systems

constituted the largest such complex in an aircraft at the

time. As the first ZPG-3W airship produced, it was used

as the structural and performance test vehicle to demon-

strate that the design conformed to specifications. The

development of the details of the design, applicable safety

factors and controls, the production process itself, static

and flight testing and inspection, were all subject to con-

tinuing surveillance by Naval engineers, pilots and inspec- ~

tors, with final control of each phase of the process re-

siding in the Navy. The amount of money used in the

development, production and testing, the time for and

condition of the airship upon delivery to the Navy, and

the time for and condition of the airship upon delivery to

_ the Fleet for operational purposes, were also controlled

by the Navy with a view to best serving the national ©

defense. —

12. The general theory of the 242’s operation was com-

parablé to that applicable to smaller airships. It was a

so-called nonrigid airship in which the structural shape or

rigidity of the gas-containing fabric envelope was main-

_ tained not by a rigid metal framework, but by keeping the

contained gas constantly at a pressure slightly higher than.

the surrounding atmospheric pressure, the difference (7.e.,

gauge, rather than absolute pressure) being only about .1

pound per square inch or 2 to 3 inches of water. Any

increases or decreases in pressure causing the gas to ex-

‘pand or contract, which resulted from altitude or tempera-,

ture changes, leaks, or other causes, were compensated for

by adding or removing air from variable volume internal

fabric ballonets, through a number of electrical or mechani-

cal systems, both automatically and manually controlled.

16 |

Respts’ Request for Find. of Fact and. Conclusions of Law

The displacement of air by the lighter-than-air helium

provided about 83,000 pounds of static lifting force. In

addition, the airfoil shape of the fully inflated envelope and

the tail surfaces provided dynamic lift like that of an

airplane of varying amounts when flying into a wind or

the relative wind created by the airship’s forward motion

produced by the propellers. Both the static lift due to

the lifting. gas, and the dynamic lift caused by airflow

over the airfoil shape of the envelope depended upon the

envelope remaining intact, and, in addition, the proper

dynamic lift development depended upon its retaining its

design pressurized shape. |

Manufacturing, Testing and Service of the 242.

*13. The D-619 énvelope of the 242 was manufactured

at Litchfield Park, Arizona, by Goodyear Aircraft be-

tween July 1956 and January 29, 1957. The H-1 gore .

- seam, or topside centerline seam of the D-619 envelope,

between panels. 27 and 33 (about 14 of the way aft-from

the nose), was manufactured as a single subassembly

seam in November or December 1956. Within this sub-

assembly, panels 32 and 33, gore H-1, were cut from rolls

2501 and 3480, respectively, of Goodyear: Tire fabric code

N 113A510, which had been shipped to Goodyear Aircraft

in Arizona on or before September 1956. The envelope.

was packed on’or about February 13, 1957, and. erected

and inflated in the Goodyear Aircraft Airdock in Akron,

Ohio on or about April 17, 1957. The first flight of the

242 occurred on or about July 21, 1958. After the final .

-acceptance flight and some 49 other flights while at Akron,

the airship left Akron, Ohio with a Navy crew on Sep-

tember 24, 1959; and was delivered to Lakehurst, New

17

Respts’ Request for Find. of Fact and Conclusions of Law

Jersey Air Station and accepted by the Aircraft Test and

Development Department (‘‘AT&D’’) on or about Sep-

_ tember 26, 1959. The airship was accepted by Airship

Airborne Early Warning Squadron One (‘‘ZW-1’’), Naval

Air Station, Lakehurst, New Jersey, on- January 29; 1960,

and remained in the possession of ZW-1 at all material

_ times thereafter until the crash on July 6, 1960.

The 242 was flown as follows:

A. Originating in Akron:

iene Hours Hours

By Goodyear Aircraft pilots "363.0 363.0

By Navy crews (Preliminary

Evaluation and Final

-~Acceptance) 42.0

By Navy crew (delivery '

Akron to Lakehurst) a 5.0 47.0

Sub-total, Akron ; ~ (410.0)

B. Originating in Lakehurst: | |

| AT&D ; _ . 95.0 95.0

ZW-1 (prior to May 30, 1960) 144.1

ZW-1 (after May 30, 1960) 113.8 257.9

Sub-total, Lakehurst. = . — (352.9)

Sub-total, by Navy crews — 399.9

Total - | : 762.9

Inspections of the type termed Intermediate and Major -

in Handbook of Inspection Requirements, Chief, Bureau

of Aeronautics, NAVAER 01-195 PDA-506, revised May 1,

1959, were conducted on the 242 as follows: °

18

Respts’ Request for Find. of Fact and Conclusions of Law

Bureau of Aeronautics Representative—Akron,

Ohio:

Intermediate—November 5, 1958 —

Intermediate—April 29, 1959

Major —September 23, 1959 —

AT&D,

N eee Station, Lakehurst, New Jersey:

Iatermediate—January 26, 1960

ZW-1, .

Naval Air Station, Lakehurst, New Jersey:

Intermediate—February 1, 1960

_ Intermediate—May 30, 1960 —

Special inspections of the topside forward area of the

D-619 envelope were also conducted as follows:

By Francis Jackson (civilian) Overhaul and Repair

-. Department (‘‘O&R’’), Naval Air Station, Lake-

hurst, New Jersey, in October 1959.

By Charles D. Hemphill, Jr., Aviation Structural

Mechanic 3d Class, ZW-1, on May 18, 1960.

By Alfred C. Lane, Jr., Aviation Structural Me-

chanic 2d Class, ZW-1, on June 20, 1960. .

The following accidents to the 242 occurred after deliv-

ery at Naval Air Station, Lakehurst, New Jersey:

Collapse of starboard landing

gear, during normal operation,

sudden engine. stoppage and

damage to starboard propeller February.25, 1960

Lighting strike ~ May 12, 1960 .

Kiting on Mast June 26, 1960

Kiting on Mast | July 4, 1960

| 19

Respts’ Request for Find. of Fact and Conclusions of Law

14. The only evidence in the record with respect to the

standard of airship envelope fabrication pertained to Good- -

. year Aircraft and O&R at Lakehurst Naval Air Station,

New Jersey. The seam fabrication techniques of Good-

year Aircraft were in all material respects identical with

those used by O&R. The same techniques were applied

to identical fabric, — wee and thread thaterials.

15. Both during the envelope assembly process at Good-

year Aircraft’s plant in Litchfield Park, Arizona, and

during the erection, inflation and static ond flight test pro-

‘gram for the envelope and the: airship at Akron, both

Goodyear Aircraft and Bureau of Aeronautics Representa-

-tive inspectors made repeated and detailed inspections of

the entire airship, and of the envelope in particular.

16. The 1844C cement used in making the seam was first

used in production in late 1955. By February of 1956 it

had been determined that the standard seam-making pro-

cedure was effective at relative humidities as high as 60

percent. By the Fall or early Winter of 1956, it was known

that the standard seam-making procedure was effective for

making seams with good adhesion at relative humidities up

to 70 percent. This standard of 70 percent was also used

as a control procedure by O&R. Humidity was chécked

continually by a clockwork, 7-day recording hygrometer

equipped with -a red light to warn of exceeding control

limits visible both in the foreman’s. office and in the pro-

duction area, and checked weekly at 10 points throughout

the production area by a whirling hygrometer. On occa-

sions when the humidity exceded 70 percent, adjustments

were made to humidifiers’ or the heating system in the

20

Respts’ Request for Find. of Fact and Conclusions of Law

Arizona plant to bring the, relative humidity within ac-

- ceptable limits. If humidity could not be controlled at less

than 70 percent, it was the practice to terminate cementing

and confine the workers to other operations. There is no

evidence that: during the period of November and Decem-

ber, 1956 the relative humidity in the Arizona plant ex-

ceeded 70 percent, or that any cementing operations were

conducted during that_period while the humidity exceeded

acceptable limits.

17. The security of the seam was- ations confirmed

hy both a pre-erection proof test at 4.5 inches of pressure

and a flight test at 4.25 inches, greatly in excess of the

maximum routine operating pressure of 3.0 inches.

18. I find that Goodyear Aircraft’s airship assembly

procedures, supervisory practices and testing and inspec-

tion were not only in accord with the standard of the in-

dustry, but represented that exceptionally high degree of

care requnnen for manufacture of a complex aircraft.

19. There is no direct way of testing the degree of

adhesion of a completed airship gore seam which is not

destructive of the seam. The only method of determining

the quality of the seam is)a visual inspection for visible

indications of defective cementing or slipping of the seam.

‘As late as October 1959, such an inspection of the topside

forward H-I gore seam by Francis Jackson, a Navy civilian

. fabric mechanic with 16 years of airship fabric experience,

did not reveal any visible defects.

| 21

Resp aaa for Find. of Fact and Conclusions of Law

The Flight of July 6, 1960 | a

20. On July 5, 1960, the 242 was flown on an experi-

mental exercise to test and develop procedures for employ- -

ment of ZPG-3W class airship in locating and retrieving

missile nese cones. After landing, supervised ‘by the -

Ground Handling Officer at about 10:45 P.M., the 242 was

. subjected to routine ground handling and preparations for

the next day’s flight, which was originally scheduled as a

routine 24-hour training flight including a ‘‘PAC Check,”’

or determination of a pilot officer’s qualifications to act

independently as a Patrol Aircraft Commander, for Lt.

William J. Carey. At or about 11:45-P.M., E.D.T., July

5, 1960, a message was received at ZW-1 from the Coast

Guard Commander, Eastern Area, directing participation -

in a search for an overdue Bermuda Race yacht, the Vat 69.

Since the scheduled flight of 242 involved only routine

training, Commander Duncan, ZW-1 Executive Officer, as-

signed the search and rescue mission to the:airship.

21. The identity and duty assignments of the Combat

Air Crew on the flight in 242 on July 6, 1960 were as

follows : pate

LT. Joseph J. Saniuk. USN, Command Pilot

LT. William J. Carey, USN R, Co-Pilot

LTJG. Walter E. Jennings, USN, Co-Pilot

LTJG. Richard V. Hall, USNR, Co- Pilot

. ° LTIG Richard H. Clapper, USNR, CIC Officer

' . LTJG Robert E. Leonard, USNR, CIC Officer

tes Lt. Orion V. Montgomery, USNR, CIC Officer

‘ ' ENS. Robert H. Pipes, USNR, Co-Pilot

Thompson, Steve B., AD2, Flight Mechanic

22

Respts’ Request for Find. of Fact and Conclusions of Law |

Furney, Frederick A., AMS 2, Flight Rigger

Culligan, Joseph G., AEM 2, First Flight Electrician

Rosley, Frank J., AT 1, Second Flight Technician

Turner, Edward B., Jr., ACW 2, Air Controller

Kuesel, Roger C., ACW 3, Air Controller |

Blalock, Francis E. AD 1, First Flight Mechanic

Contreras, Antonia (n), AEM 3, Electrician

Garrison, Bruce O., ATN 3, Technician

Shabel, Jerry E., ATN3, Technician

Godbold, Henry V., ACWAN, Air Controller

Saumier, Donald L., ACW 3, Air Controller

Coutu, Leo J.. GMGI/AT, First Flight Electronics-

man

The crew loaded on personal gear and took off posi-

tions, Lt. Carey in the left, or pilot’s seat, and Lt. Saniuk

in the right, or copilot’s seat. After takeoff at 7:25 a.m.,

the Command Pilot gave the Ground Handling Officer an

__ Operations Normal Report, indicating that the aircraft and

~ all required systems were operating normally. The flight

seems to have been routine until just prior to the crash.

The search and rescue mission was terminated by.a mes-

sage received at about 1 p. m. At about 2 p. m. the: .

242 descended. to an altitude of 150 feet at Barnegat

Lightship in an aerial photograph exercise and rose

shortly thereafter to 500 feet. The weather was mild,

with surface wind of south 10 knots, and no indication of

turbulence, although there were reports of some clouds at

Atlantic City and Lakehurst. The airship static condition

within the few minutes prior to impact was close to

equilibrium, neither heavier nor lighter than air, within

_ about 1,000 pounds, depending on superheat, or the differ-

lhl

. 23

Respts’ Request for Find. of Fact and Conclusions of Law

ence between the temperature of the helium gas inside the

envelope and that of the atmosphere.

22. The 242 crashed into the Atlantic Ocean at 39°44.3’

North latitude, 73°46.1’ West longtitude, a few miles

southeast of Barnetgat Lightship, at or about 2:29 p. m.

BE. D. T., July 6, 1960.

23. The location of the flight crew immediately ai

to the impact was:

LT. Saniuk Pilot’s seat; in the cockpit

LT. Carey Cockpit area

ENS. Pipes o

Shabel ait adh

Thompson sis ™

LTJG Leonard ‘ .

LT. Montgomery CIC area

Saumier CIC, ECM Operator’s Station

(Survivor)

Godbold CIC area

Blalock Stern Compartment

Contreras Stern Compartment, fell forward into

(Survivor) Elec-Tech Compartment

Furney . Galley

LTJG Jennings Lower forward port bunk

, . LTJG Hall Center forward starboard bunk

an LT. Clapper Lower forward starboard bunk

-Kuesel Lower aft starboard bunk

t 3, Culligan Middle aft port bunk.

; (Survivor)

Turner Middle aft starboard bunk —

Coutu Lower aft port bunk

ERR ar canhinatnartanieiietiinitinda thes

24

Respts’ Request for Find. of Fact and Conclusions of Law

Rosley Starboard side, galley seaaal

Garrison Radome

Eyewitness, Survivor and Salvage Evidence

24. In post-accident salvage operations, most of the air-

_ ship was recovered, including 98 percent of the envelope.

. A tear was found in the salvaged envelope about 133 foot

- long running along the topside forward center line (the

H-I gore seam) of the airship. For about 40 inches in

panels 32 and 33, the seam itself was open. In the re-

mainder, the tear was in the. fabric near the seam.

25. If the envelope tear had developed in flight thé

helium would have immediately escaped therefrom, causing

the airship to plunge instantaneously approximately 500

feet to the ocean. None of the credible eyewitnesses saw

such a tear while the airship was still in flight. The tear, |

which all agreed was a high speed tear, would have taken

three to four seconds to develop, and from that time-to

the time of impact with the ocean no more than about

fifteen seconds could have elapsed. by

26. I find that: the airship did not immediately crash

into the ocean once it began its fatal descent. Credible

eyewitness testimony leads to the conclusion that it took

two, to three minutes from the time the airship was observ-

ably in trouble (wringled, sagged, or ‘‘banana’’ shaped,

reflecting an internal pressure of less than 1 inch of water,

about half the minimum required operating pressure of 1.5

inches) until the airship impacted with the water. During

much.of this time, the airship was gradually descending.

27. I find that the airship did not burst open in the air.

28. I find that while the airship was in flight at about

500 feet: it lost an excessive amount of pressure. It is not ”

3

25 °

Respts’ Request for Find. of Fact and Conclusions of Law

uncommon for an airship to lose pressure, as a result of a

decrease in altitude, a reduction in superheat, an ‘open

valve or a small hole in the envelope.. Normally, such a

loss of pressure is compensated for by one of several

manual and automatic systems aboard the airship. In this

ease, however, the loss was not compensated for, thus

causing the airship to appear in a banana shape, which

persisted for at least two minutes before the airship lost

so much pressure that it buckled rapidly, causing a shift

in the distribution of: helium lifting gas relative to the

aggregate mass of the airship, pitching the nose down .

like a ) pendulum into the final plunge to the sea,

29. I find that upon impact with the ocean the envelope

of the airship was intact. Upon striking the water, the

forward part of the 44,000 to45,000 pound airship car was

substantially damaged, filled with water, and sank rapidly.

' As the car sank, pulling the envelope down, there was a

rapid increase in pressure within the envelope. The tear

along the topside centerline seam was caused by contact

with the water of the envelope, together with the increase

in pressure and the reaction forces created by the impact

of the car which were transmitted by the forward catenary

cables to the envelope, which was deformed at a large

crease running transversely across the forward part of the

envelope. The tear originated at an impact-induced burst

in the fabric adjacent to the portion of the seam that was

open, not in the seam itself. It-was an effect, not a cause,

of the accident. 2.

30. The strength of the fabric in panels 32 and 33,

gore H-l, when tested after salvage was well over speci-

fication requirements, and roughly 90 percént of 1956 origi-

nal roll tests. The adhesion of the two plies of the -fabric

was equal to or greater than the original roll tests made in

1956 at the time of manufacture. There was no deficiency

“6

¢

Respts’ Request for Find. of Fact and Conclusions of Law

in adhesion to the underlying cloth of the outside coat of -

the fabric of vulcanized neoprene. In‘short, any claim |

of any deficiency in this fabric is unsupported,

31. I find that the seams of this airship were properly.

fabricated and that the strength of the seams met design

requirements and was adequate for all operations within

the limitations on pressure and manuevers established in

the Navy ‘Flight, Handbook. It is undisputed that samples

cut across the salvaged H-I seam in panels 31 and 32

showed adequate adhesion on strip tests, the fabric break-

ing before the seam at values in excess of the minimum

strength requirements and approximately 90 percent of

its original strength. Portions of the H-I gore seam

immediately adjacent to an approximately 40-inch section

in panels 32 and 33 which opened, were peeled by hand

for a short distance and were found to have good adhesion.

32. The Edwards J-3 helium low pressure warning

bell was considered a secondary warning device as opposed

' to the liquid and mechanical manometers, one of each of

‘ which was located on the pilot’s panel. A visual inspec-

tion of the bell when salvaged 9 months after the airship

left the hands of Goodyear Aircraft, disclosed it had been

inoperative due to worn-out components. I find that for

some time prior to the commencement of ‘the flight on

‘July 6, 1960, the bell was inoperative due to long usage.

. 33. Libelants failed to prove that any manufacturing

defect was the cause of the accident. While the burden did

not rest on Goodyear Aircraft to do.so, respondent demon-

strated throughout the course of trial the extreme precau-

tionary measures it took, with Navy approval, throughout

the manufacturing process, and subsequent thereto, to

c : j ‘ o*

* 97 oe .

Respts’ Request for Find. of Fact and Conclusions of Law

insure a completely safe prodyct. In addition, inspections

of the finished product were numerous, detailed and

thorough. . \

34. Binetgeucy action for the low pressure condition

described by the eyewitnesses included one or more of the .

following: pulling back on the control column slowly to

produce an increase in altitude, adding air to the ballonets

through opening dampers and turning on blowers, reducing

air speed, and dropping slip tanks or dumping liquid

ballast. : )

35. Immediately.prior to the final 45-degree dive into

the ocean, credible eyewitnesses reported the airship was

in a gradual descent. At impact the engines and propellers

were developing thrust equivalent to a 45-knot forward

speed. No eyewitness reported the dropping of slip tanks _,

or the dumping of ballast, water or fuel, prior to impact...

Four of the slip tanks were found in their respective bays

under the car ‘when the airship’ was salvaged, and the fifth

was reported by a-survivor to be floating immediately .

adjacent to the car after the crash. When the airship

was salvaged, the pilot’s and co-pilot’s seat belts were

found intact and unbuckled. There is no evidence in the

case to indicate that anyone on board realized that the

airship was in peril prior to the commencement of the |

final 45-degree dive. | ,

36. In the ZPG-3W airship, the automatic pressure

system provided air intake through the four dampers of

the center ballonets, only. Upon salvage of the main DC

distribution circuit-breaker panel in the Elec-Tech Com-

partment, two circuit breakers controlling the center bal-

lonet dampers and the air valve control circuit breaker,

28

Respts’ Request ho Find. of Fact ol Conclusions of Law

which ovata “these dampers and other functions of the .

pressure system, were found in the off or disconnected.

. position. The “positions of other circuit, breakers on ‘this

‘panel were consistent with known pre-impact situations

affecting the related electrical systems. The servo drive

was demanding air and certain other- portions of the auto-

matic air pressure control system were in a position which

indicated that the airship was in a low pressure condition

at the last time the — was cree Te

&

Respondent Goodyear Aircraft’s iia

: Affirmative Defense,

‘e I find:

that libelants’ decedents were Naval personnel on

active duty who died while engaged in military duty

as members of the flight crew of a United States

_Navy military airship;

that the airship was the prototype of an advanced

weapons system: designed’ and made under Navy

engineering supervision, and subject to Naval in-

spection, cost limitations and time Tequirements,

expressly for use by the. Navy in the, national

defense after its own flight testing and inspection,

and was not an article intended for distribution to

an indeterminate class. of general consumers for

immediate use without further inspection or testing;

that under the cost-plus fixed fee contract under

which the airship was manufacturer, pursuant to

established defense procurement policies embodied

in Armed Services Procurement Regulations, the

United States is obligated to reimburse Goodyear

Aircraft for its expenses and any judgment or Navy-

approved settlement of these cases; and

3° . ; 29

\ mS .

Respts’ Request for Find. of Fact and Conclusions of Law

that libelants and other’ claimants on behalf of whom -

these actions are brought have been recipients of

cy the statutory benefits administered by the Depart-

ment of Defense or the military departments, Veter-

ans Administration, or Social Security -Administra-

tion, established for relief of service personnel or

next of kin of service personnel who die or are

injured in military service.

Conciusions oF Law

1. Libelants failed to meet their burden of proving by a

preponderance of the. evidence those matters in issue at

trial which were fundamental elements of their claim that

the airship accident was caused by action or inaction of the

respondents, including the following:

Libelants failed to prove that the.crash of the

ZPG-3W airship BUNo 144242 which resulted in

the death of ’their ‘decedents was due to a seam .

opening in the envelope on the top of the airship

while it was still in flight;

Libelants failed to prove that such seam failed

because of i improper manufacture;

Libelants failed to prove that fabric used in con-

structing the seam was .inherently defective and

improper for the use intended;

- Libelants failed to prove that the helium low

pressure warning bell was defective for the purposes

intended or that such bell was of improper design

and manufacture; '

Libelants failed to prove that Goodyear Aircraft

or the other respondents were negligent or breached

30

_ Respts’ Request for Find. of Fact and Conelusions of Law

any warranties,- express or implied in the manu-

facture of the airship or its parts;

, ss etbelents failed te preve that there wes ean

B.C. ebsenee of any negheence on the part ef Hhelante

» B.C. Be

2. There is a complete failure of proof that any act or

omission by any respondent was tlie proximate cause of the

accident which occurred 9 months after the completed

airship or its parts were last in the possession of respond-

ents. oes

3. In the light of the foregoing conclusions, we express

no view as to whether or not some or all of those facts

referred to by Goodyear Aircraft as supporting its Sec-

ond Affirmative Defense constitute a defense to these

actions.

Dated: New York, New York

June 27, 1967

Respectfully submitted,

_ CaHILi, Gorpon, Sonnet, Remnpet.& Oni

Proctors for Respondent

Goodyear Aircraft Corporation

Approved 6/30/67:

s/ Irvine Ben Cooper,

* US.DJ.

arama eeeemmemmmmmmmenrnnn aaa

31

APPENDIX C

Opinion by Irving Ben Cooper, D. J.

62 A. D. 681

62 A. D. 682

61 Civ.. 798

UNITED STATES DISTRICT COURT

SoutHerRN District or New York.

2

[SAME TITLES]

Irvine Ben Cooper, D. J.

On July 6, 1960 ZPG-3W ‘Airship United States Navy

Bu No. 144242 crashed into the Atlantic ocean off the coast

of New Jersey. Eighteen of twenty-one servicemen aboard .

were killed. - Libelants are the representatives of eléven

of the deceased servicemen and bring suit for their wrong-

ful death. | .

The present ease was assigned to this Court for all -

purposes as a Rule 2 case on April 1, 1963. After ex-

tensive discovery proceedings, the case came on for trial

without a jury on April 10, 1967 and was concluded on

May 2, 1967. The principal respondent, Goodyear Air-

craft. Corporation, manufactured the airship under the

’ terms of a contract with the Navy. The case against the |

other two respondents, Edwards Company, Ine. and Good-

year Tire & Rubber Company, manufacturers of the low

pressure warning bell and the envelope fabric respectively,

was dismissed during the third day of trial. 7

“ he 242 airship was designed as an all weather advanced

early warning aircraft. It was 403 feet long, had a total

weight of about 83,000 pounds, a theoretical volume of 1.5

million cubic feet. With many unique features, it was

the largest in its class although not a radical departure

tegen ED PORE ALR OS

32

Opinion by Irving Ben Cooper, D. J.

from prior models. The airship’s envelope contained

helium under pressure thereby creating a tension which

gave the airship its structural integrity. The airship

normally cruised at a. envelope pressure of 2 inches of

water. The pressure, however, was not constant; rather

‘it continually changed with variations of temperature and

altitude. A number of systems, .both automatic and

manual, provided the controls to adjust the changes in_

pressure.

When the airship was salvaged from the ocean, a tear

was found in the envelope about 133 feet long running

along the topside forward center line (the H-I gore seam)

of the airship. It is libelants’ contention that this tear

developed while the airship was in flight and was the

cause of the crash into the ocean. They contend that the

tear commenced in the seam between panels 32 and 33

‘as a result of its defective manufacture by respondents.

Respondents on the other hand contends that the seam was

properly manufactured; that the tear commenced in the

fabric adjacent to. the seam and was caused by the air-

ship’s impact with the ocean.

By unequivocal stipulation Sree the parties, it is

upon the resolution of this threshold question—whether

the 133 foot tear developed upon impact or.while the air-

ship was in flight—that liability depends. Failure to sus-

tain their imperative burden of proof thereon would war.

rant dismissal of libelants’ claims.

If the envelope tear had developed ‘in flight, the helium

would have immediately escaped therefrom, causing the

airship to plunge instantaneously, approximately 500 feet

33

Opinion by Irving Ben Cooper, D. J.

to the ocean. The tear, which all agreed was a high speed

tear, would have taken three to four seconds to develop,

and from that time to the time of impact with the ocean

no more than about fifteen seconds could have elapsed.

Contrary to libelants’ contention, we find that the air-

ship did_ not immediately crash into the ocean once it

‘began its fatal descent. Credible eyewitness testimony

leads us to conclude that it took two to three minutes

from the time the airship was observably in trouble—a

time very far in excess of the rapid descent that would

have occurred had the envelope tear developed while the

airship was still in flight. |

In support of this conclusion, we place great weight

upon the testimony of Benjamin Edwards, the ‘captain

of a fishing boat, who observed the airship’s entire descent

through binoculars. Both the time that he stated ‘it took

the airship to fall (two to three minutes), and. the flight

characteristics he ascribed to it.on descent (gradual), are

totally inconsistent with libelants’ theory of the accident.

We were also impressed with the testimony of Com-

mander Murphy, a: pilot flying at a 45° angle above the

airship when it began its descent. The Commander, who

had about 3,000 hours of flying time (about 70% of which

was over water), effectively demonstrated his ability to

observe the details of the crash scene, and testified that

he saw no tear in the airship from the time he first ob-

served it until impact. The witness: Lopuszynski, the

radar operator flying with Commander Murphy, supported

the latter’s*testimony. stating that he observed the airship

intact at the moment before impact. ;

Finally, Albert Keppler, another eyewitness, testified

that he observed the airship just before the erash from a

34

Opinion by Irving Ben Cooper, D. J.

fishing boat about two to three miles away. Keppler

stated that he observed what appeared to be a tear run-

ning vertically downward from the top. of the airship to

just below the airship’s horizontal center line. After

being told long before trial that-no tear was discovered

in the salvaged envelope (see stipulation) where he had

‘described it, Keppler concluded that what he thought was

a tear must have been a crease. Keppler convincingly

testified that from the time he saw the crease first de-

velop until the airship hit the water one and one-half to

two minutes elapsed.

Libelants’ case, in the final analysis, rests upon portions

of the-testimony of several eyewitnesses, the three sur-

vivors and an ‘expert witness, Joseph Vincelli. We find

completely lacking in conviction the testimony (particu-

larly Sellinger’s) of -those eyewitnesses who stated that

they observed what libelants contend would be interpreted

_to be a tear in the envelope while the airship was in

flight. We find that the eyewitness testimony to the

contrary overwhelmingly supports in this respect the

interpretation of the evidence advanced by respondent.

Culligan, the one survivor who physically testified at

trial, swore that he was asleep in the bunk room just be-

fore crash: .

I woke up and the ship was diving in a nose-down

attitude. I saw daylight coming from the astro-

dome.’ I don’t remember. impact. (Tr. 35, 36.)

1 The astrodome is a clear plastic bubble which permits members

of the crew to look up into the inside of the envelope. If there are

no holes in the fabric the view is one of blackness. °

35

Opinion by Irving Ben Cooper, D. J.

Libelants contend that Culligan awoke before impact and

observed the envelope tear while the airship was still in

flight. Respondents, on the other hand, contend that Culli-

gan, who was only twenty years old at the time and ad-

mittedly a sound sleeper, did not awaken until impact.

While we find that Culligan was sincere. in his. effort‘to

testify truthfully, and although we believe he was sud-

denly awakened shortly before impact, we found his testi-

mony on this vital point unconvincing. We are uncertain

that he actually saw daylight; that if he did, it is more

likely that he observed daylight after impact. a

The two other survivors, whose depositions were put into

evidence, testified that they heard a loud noise as the air-

ship began to fall. Libelants’ contend that the noise they

heard-was the bursting of the seam. However, that noise

is equally supportive of respondent’s position that it fol-

lowed the breaking up of primary or secondary members

(inchiding catenary cables) caused by the airship’s exces-

sive loss of pressure. — . |

« . * ‘

‘ Libelants’ expert, Vincelli, testified that it was his opin-

‘jon, based on his official participation in the accident in-

vestigation, that the tear commenced in the H-I gore

-seam at panels 32 and 33. He asserted that the tear orig-

inated in a shear failure and was caused either by excessive

humidity or the presence of foreign matter on the fabric

when the seam was cemented. He concluded that the seam

was improperly bonded, because when it separated all the

cement remained on one side of the seam and the threads

were on both sides. We find this latter point inconclusive.

Moreover, Vincelli’s hypothesis of excessive humidity or

dirt as the cause of the rupture‘is unsupported by any

proof and was, in fact, belied by respondent’s proof of the

36

Opinion by Irving Ben Cooper, D. J.

meticulous care taken during the entire manufacturing

process. While Vincelli did positively state that the seam

_eould not possibly have split open on impact, his failure

to support this conclusion vin convincing reasons leaves

it inconclusive.

_ ‘We were considerably more iniasauiiaad by the expertise

of respondent’s expert witnesses. Bauch, now semi-retired,

was an established stress analyst. He identified strain

marks on the envelope fabric and concluded that the tear

commenced in the fabric due to an overload of stress and

then the tear ran into the seam. Bauch together with Pipi-

tone analyzed the stresses placed on a low pressure en-

velope that struck water and concluded that the tear in

question was caused by impact. Their reasoning in support

of this conclusion is impressive. Pipitone stated and we

believe that the tear in question was caused by ‘‘contact

with the water of the envelope with the reaction forces

created by the.car, which were transmitted by the catenary,

forward catenary cables.’’ (Tr. 2068, 2069.) ,

In short, libelants failed to convincingly establish that _

the airship burst open in the air. . They did not prove that -

any manufacturing defect was the cause of the accident.

While the burden did not rest on Goodyear to do so, re-

spondent demonstrated throughout the course of trial the

extereme precautionary measures it took, with Navy ap- “”

proval, throughout the manufacturing process, and subse-

quent«thereto, to insure a completely safe product. In

addition, inspections of the finished product were numer-

ous, detailed and thorough.

97

Opinion by Irving Ben Cooper, D. J.

‘As for respondent’s contention that the accident was

caused by fatal mistakes on the part of certain members —

of the crew, we observe it appears to have validity, but it -

is neither. respondent’s burden to prove it nor the court’s

responsibility to determine if it has been legally estab-

lished.

. We do find, however, that while the airship was in flight

at about 500 feet it lost an excessive amount of pressure.

There is ample evidence in the record to show that it is not

uncommon for an airship to lose pressure. Sometimes this ©

could be caused by a loss of altitude, a decrease in super-

heat, an open valve or a small hole in the envelope (not an

unusual occurrence). Normally, a loss of pressure is com-

pensated for by one or several manual and automatic sys-

tems aboard the airship. In this case, however, the loss

was not compensated for; thus causing the airship to ap-

pear in a banana shape (a fact which most of the impres-

sive eye-witnesses observed). The banana shape persisted

for at least two minutes before the airship lost so much

pressure that it began its final plunge to the sea. Pipitone’ S

theoretical explanation of what would happen to the air-

ship if there was a significant uncompensated loss of pres-

sure comported substantially with the credible eye witness

testimony. , , |

We note, finally, libelants’ trial strategy included an at-

tack on respondent’s theory of the cause of the crash by

showing that the Goodyear and Navy witnesses were so

biased as to be incredible. It is no more than fair to. say

that proof on this score was completely absent. The Navy’s

interest in the law suit, because of its contract of indemnity

with respondent, was conceded, but the sincerity of the

individual witnesses was never destroyed. |

IRAN CRIES MOET ERLE NLT SE POET CT ANT NR WP on

ee ; adn Piped ri esi mth er

38

Opinion by Irving Ben Cooper, D. J.

We see no purpose in making a detailed analysis of the

total trial record and are content to point out only some of

the total evidentiary highlights. In a ‘‘close’’ case (which

this is not) such an approach might be in order. The

greatest impact of proof here came from the accredited —

eyewitness—not alone what they said, but the conviction

with which they testified. |

We conclude that libelants have not sustained. their

burden of proof. They have not established that the tear

in the airship developed before impact. They have failed

to prove any manufacturing defect in the airship.? Having

decided that libelants have not proved their claim, we do

not decide the question of the validity of the second affirms-

tive defense based on Forea v. United States, sa U. S. 135

(1950).

pet nry the libel is dismissed. Respondent shall

submit findings of fact and conclusions of law within two

weeks of the filing date of this memorandum,

So ORDERED:

New York, N. Y.

June 14, 1967

Irvine Ben Cooper

United States District Judge.

2In addition to claiming that the seam was defective, libelants

also contended that the fabric and low pressure warning bell were

defective. The latter two: claims were not pressed at trial and are

patently unsupported by tlte evidence adduced.

FOLIO 6 RAT ATES MIRO gY oe .

39 eee ;

Po APPENDIX D

Opinion by the United States Court of peers |

for the Second Circuit

UNITED STATES COURT OF APPEALS

For THE SEconp Circuit

+

Nos. 300, 301, 302—September Term, 1967--

(Argued February 21, 1968 | Decided April 10, 1968.)

Docket Nos. 31770, 31771, 31772 é

vv

’ Ruts Monrcomery, etc., et al.,

Appellants, |

Ve .

GoopyEarR ArIRcRAFT CORPORATION,

’ Appellee.

(Two other cases) .

_&

vv

Before: ,

Frienpiy and Situ, Circuit Judges, and

Giewoux, District Judge.*

. + ——- ne

Appeal from a final ae after trial in admiralty

in the United States District Court for the Southern Dis-

trict of New York, Irving Ben Cooper, — fentining

the ee libels. Affirmed.

+.

- Murray L. Lewis, New York, N. Y. (Harry H.

Lipsig, Joseph B. Castleman and Richard

S. Perles, New York, N. >, & on the brief),.

for appellants.

* Of the District Court of Maine, sitting by designation.

ad

_ Opinion by the United States Court of Appeals °

for the Second Circuit

Paut W. Wuuiims, New York, N. Y. (William

A. Runyan, Robert .F. Martin, Stephen R.

Tisa, and Cahill, Gordon, Sonnett, Reindel —

& Ohl, New York, N. Y., on the betel), for

appellee,

+

Situ, Circuit Judge:

— On July’6, 1960, at 2:30 p.m., the U. S. Navy airship Re-

liance, ZPG 3W, BuNo 144242, a non-rigid two-engined ©

aircraft some 403 feet’ long, inflated with about 1,500,000

cubic feet of helium, crashed into the ocean off the coast

of New Jersey. Eighteen servicemen out of a crew totaling

twenty-one were killed or died after the crash. The per-—

sonal representatives of eleven of the decedents brought

libels, consolidated below, based on the Death on the High

Seas Act and general maritime law against Goodyear Tire

and Rubber Company, manufacturer of the fabric used in

the airship envelope, Goodyear Aircraft Corporation, manu- |

facturer of the airship, and Edwards Company, Inc., manv- .

_facturer of a low pressure warning bell used in the airship.

. Judge Irving Ben Cooper, in the District Court for the

“Southern District of New York, dismissed the claims

against Goodyear Tire and Edwards at the conclusions of

appellants’ direct case and, after trial, entered judgment

in favor of respondents, holding that -the libelants had

failed to sustain their burden of proof as to Goodyear Air-

craft. We find no error and affirm the judgment.

No question is raised as to the judgment in favor of

Goodyear Tire and Rubber and in favor of Edwards. Ap-

. pellants attack only the exoneration of Goodyear Aircraft.’

s While the United States is not a formal party. to the action, it is

undisputed that its contract with Goodyear binds the United States

to jedansnléy Goodyear for any recovery against Goodyear as well as

‘ the expense of defending against the libels.

41

Opinion by the United States Court of Appeals

for the Second Circuit ’

Since his was a non-rigid airship, the shape of the en-

- yelope depended on sufficient gas pressure. The envelope

was filled with helium normally at sufficien}-pressure to

keep the envelope taut, and to provide static lift nearly

equal to the weight of the envelope; engines, radome, radar

equipment, car, fuel, crew and: accessories. The ship was

maintained in flight by the addition of the dynamic lift of

the-outside air over the envelope acting as an air foil when

the ship-was driven ahead by one or both engines. Pres-

sure in the envelope was subject to variation from a num- -

ber of causes, altitude, superheat from the sun on the en-

velope, small leaks of helium, and others. A decrease in

altitude caused lowering of pressure. Within the main

envelope were four ballonets, which could be inflated with

air to reduce the volume of helium and increase its pres-.

gure on the envelope. Tanks of fuel and ballast could be

jettisoned to lighten ship and cause it to rise.

Appellants claimed that the crash had been caused by a

tear in the envelope of the airship which resulted from

Goodyear Aircraft’s failure properly to bond one of the .

envelope seams. The tear in question was found after sal-

vage in the fabric of the envelope. It extended for about

133 feet in a relatively straight line topside aft from the

nose of the ship along beside the topmost longitudinal seam, ,

- interrupted by a three to four foot opening of the seam

itself, and then along next to the seam again, to the radome,

a structure on the top_of the ship housing radar equip-

‘ment, It is appellants’contention that the tear began at the

opening in the seam, and extended from the opening for-

ward to the nose and aft to the radome. Goodyear claims

that the crash was caused#y changes in air pressure within

the envelope which were not properly corrected for by the

pilot and crew. It argues that the teardn question resulted

ae

——f

ry

42

Opinion by the United States Court of Appeals

for the Second Circuit

upon the airship’s crashing into the water, not while it was

in the air. Libelants’ case is based on the contention that

the seam was improperly made and that it failed in flight

causing the 133 foot tear, agreed to have been a high-speed

tear. 7

The court found that libelants ‘‘failed to~convincingly

establish that the airship burst open in the air,’’ and that

they failed to prove that any manufacturing defect was

the cause of the accident. It did not reach the questions

raised by respondénts’ pleadings of whether a manufac-

turer acting under a military weapons system develop-

ment contract may be liable either in negligence or strict

liability to persons injured as a result of defects in manu-

facture, or whether the government contract of indemnity

precludes recovery for injury or death of service personnel

under the theory of Feres v. United States, 340 U. S. 135

(1950). . Since we uphold the court’s determination that

the libelants have failed to carry the burden of persuasion

. on the essential facts of causation, we likewise do not seach

_ the questions sought to be raised by the special defenses.’

Although we could wish that the proof were more con-

vincing here as to the true cause of the crash, we cannot

say that the court was bound to accept libelants’ version.

‘ The basis of the determination appears from the court’s

? We express no opinion on the assrted defense of governrhental

immunity under the doctrine of Feres v. United States, 340 U. S.

135 (1950). Compare Weyerhaeuser SS Co, v. United States, 372

U. S. 597 (1963); Ryan Co. v. Pan-Atlantic Corp., 350 U. S. 124

(1956) ; Weyerhaeuser SS Co. v. Nacirema Co., 355 U. S. 563

(1958) ; Crumady v. The.J.'H: Fisser, 358 U. S. 423 (1959), and .

Waterman Co. v. Dugan & McNamara, 364 U. S. 421 (1960).

Nor do we reach the question of whether the fact that the enve-

. lope was manufactured under government contract and pursuant to

government specifications in any way insulates the manufacturer

from liability, compare Boeing Auwplene Company v. Brown, 291 F.

2d 310 (9 Cir. 1961). :

en

43

Opinion by the United States Court of Appeals

| _ for the Second Circut

opinion.’ The evidence as to what happened in the period

just before the crash was conflicting, particularly in two

respects essential to the support of libelants’ theory, the

time element between the onset of trouble and the impact

‘with the ocean, and the degree of ‘inflation of the. envelope

when the ship was first in difficulty. The airship had an

air sea rescue assignment to search for the yacht Vat 69 —

reported missing at sea. The airship left Lakehurst on

the mission about 7:00 a.m. July 6. An officer aboard was

to be checked out on his qualifications for patrol aircraft

commander. The yacht was reported found about 1:00

p.m., and the airship turned to training maneuvers in the

area of Barnegat Lightship off the New Jersey coast. It

- maneuvered in this area until it crashed in the sea, nose

first, about 2:30 p.m. . |

Respondents appear to advange a theory that the crash

was caused by pilot or crew error in one of two respects,

both quite speculative in foundation. One was that the

pilot and the officer being cheéked out were at the controls,

and that the pilot put the ship into some maneuver to test

the officer’s ability to respond with proper corrective ac-

tion, that the ship went into too steep a dive, throwing

both against the controls and preventing prompt enough

corrective action. (On salvage both seat belts were found

unbuckled.) | :

2 It would be more helpful to us on review, however, and would

give us greater certainty that the result was correct and reached

after careful and thoughtful consideration of all factors, if detailed

findings and conclusions were reached by the judge himself rather

than wholesale adoption of those submitted by counsel. See Matton.

Oil Transfer v. The Dynamic, 123 F. 2d 999 (2 Cir. 1941). F. R.

Civ. P. 52(a), 5 Moore, Fed. Practice {| 52.03, p. 2632: “The pur-

pose of findings of fact and conclusions of law is to aid the trial

court in making a correct factual decision and a reasoned application

of the law to the facts; to define for purpose of res judicata and

estoppel by judgment the issues then adjudicated ; and: to aid the

appellate court.” :

ee eS

44

— by the United States Dour of Appeals

for the Second Circwut

The other thoary was that the circuit breakers for the

electrical equipment which governed the supply of air to

the ballonets were pulled out to the off position by error,

making it impossible to correct for loss of pressure. On

salvage these two: circuit breakers, as well as three imme-

diately above them controlling current to the radar system,

were found in the out position, in which the circuits were

broken. There was evidence from two of the survivors,

Culligan, the senior electrician, and Contreras, that Con-

treras, one of the junior electricians, some time previous

to the crash-had awakened Culligan, reported a lack of

pressure in the radar system and inquired as to the loca-

tion of the circuit breakers controlling the radar. Con-

treras testified that he checked the ‘circuit breakers and

all were on except those of some heaters which were in-

operative during the hot weather. He thought a radar

man also checked the circuit breakers. R. 194-197. <A

great majority of the circuit breakers on the electrical

_ panels were found in the on position when salvaged. The

significance of those found in the off position is in dispute,

since a short in the system throwing the circuit breaker

to the off position would be caused if any exposed part

of the particular circuit entered the water while power

was still being supplied to the circuit. Thus neither of

respondents’ theories provides a satisfactory solution to

the-question of what was the immediate cause of the erash.

‘Both depend to a considerable degree on conjecture. Ap-

pellants’ version, however, suffers from a like weakness.

The testimony of the three survivors, of whom Culligan

testified and the depositions of Saumier and Contreras

were read, and the opinions of Vincelli,-a Navy employee

who examined the envelope after salvage, and Hiering,

another Navy employee who ran fabric tests, if credited,

45

Opinion by the United States Court of Appeals

_ for the Second Circuit

- lend some support to appellants’ claim of a seam opening

in flight. Culligan testified before the Navy Board that

he went back to sleep after talking with Contreras, and

saw daylight coming from the astrodome when he next

awakened ‘in his-bunk. The judge credited his statement -

_at trial, R. 39-40, that he saw daylight; which meant that

the envelope had opened. He concluded, however, that

Culligan was mistaken in thinking that this was before

impact with the water. The record,. Ex. A, Resp. App..

2906-14; supports this conclusion of the judge, for Cul-

ligan recalled that he was waiting for impact when he saw ~

‘ the light, but that impact never came, an indication that

impact had already occurred before Culligan was fully

awake, and that it may have been before Culligan saw

the light. Contreras and Saumier heard a blowout or

burst, or loud crash followed by a nose dive. While this

- might well have been taken to indicate that the envelope

had in fact burst in flight (as had been.the Navy En-

gineering Group’s opinion, see Ex. 13, Resp. App. 2919- -

2923), it is possible that the noises came from cables or

structures giving way after the ship had been distorted

in shape, with sagging of the envelope, and Vincelli, on

whose investigation the Navy's opinion was based, had

testified, R. 303, that his opinion that the tear occurred

in flight required a taut condition of the envelope, with

no sagging, when the tear occurred. That the envelope

was distorted, banana or ‘hot dog shape, wrinkled, folded

or creased before it dove and that there was then no top-

side tear, is supported by testimony of eyewitnesses on

fishing boats and a plane nearby at the time of the crash.

The time estimates varied widely. See Weeks, R. 588-9,

Lockie, R. 621-3, Keppler, R.:662-673, Murphy, R. 683-797,

46

Opinion by the United States Court of Appeals

- for the Second Circuit .

Lopusznski, R. 805 (normally inflated), Conte, R. 914-934,

Schleifer, R. 1737.‘

It may be that these witnesses’ testimony was incorrect

in‘some degree, from inaccuracy of observation, faulty

memory, or otherwise. In ‘some respects it is quite likely

that it was: Several believed the ship was operating at

. the time of the crash only one of its two propulsion en-

gines, with the propeller of the other feathered. The

* The following condensation of the testimony illustrates the con-

siderable variation in the testimony of the eyewitnesses. Boyd,

Conte, Eble, Edwards, Keppler, Lockie, Palumbo, Schleifer, Seliin.

ger and Weeks saw the crash from fishing boats in the area. Com-

mander Murphy and Lopusznski from a Navy airplane flying above

the blimp.

Edwards—The front part of the bag was limp before it hit. R.

496, 557.

W eeks—Banana or hot dog shape.’ R. 588, 13-15 seconds. R.

ae , Twisted sorne—still maintained its gas, both ends. R.

Descending—as it was coming down, fearing the surface nosed

up slightly at about 15 or 20 degree angle. R. 623. %4 min-

ute—minute and Y%. R. 644.

Keppler—Crack or tear starting ‘at the top, vertically to directly:

above forward edge of gondola. R. 652-3. Tear slowly, not

swiftly—five seconds. R. 658. Now knows there was no

tear there. R. 659. Noticed it minute and “%—2 minutes

before crash. R. 660a.

Could have been a shadow or a wrinkle. R. 665. Minute and

\% after Keppler told Weeks it was in trouble. R. 667.

Ship reverse position from downard angle to upward angle.

R. 672, 673.

Commander Murphy—Fold or crease across the top—banana

shape momentarily—dove into water. R. 683. No holes. R. -

683. 15 seconds—2 or 3 seconds in the dive. Dove from'

about 700 ft—2 or 3 seconds. R. 773. Nose drooped before

it went in—no ripping or tearing. R. 797.

a ne inflated, as if it had flown into the water.

R

Conte—Banana shape—wrinkles. R. 914-5. “Came down slow.

2 or 3 minutes. R. 933-4.

Boyd—400-600 ft. u uP midship section collapsed above the gon-

ola area. R,. 172

Fragmented wavering pieces of fragment. R. 1726. 6 or 8 ©

seconds to hit the water. R. 1726

( footnote éontinued on next page)

—

‘Lockte—Noticed a few ripples top section forward. R. 621. ©

‘Be

47.

Opinion by the United States Court of Appeals

for the Second Circwmt

testimony of the survivor Contreras, R. 190, however,

makes it quite plain that the second engine had been

started up shortly before the crash, whereupon the aux-

iliary power unit, not needed when both main generators

were running, had been shut down and was being serviced.

The judge was not required, however, either by the quite

natural variations in the eyewitness’ testimony, or such

inaccuracy as the apparent one concerning the second en-.

gine, to reject all the observations which pointed toward

a loss of pressure prior to the crash and prior to the tear.

We have no definite and firm conviction that he was in

error in finding a loss of pressure in flight, causing dis-

tortion of the envelope to a banana shape and causing

- the loss of elevation without bursting of the envelope. _

The court’s factual determinations, reached after trial

involving the credibility of witnesses, many of whom tes-

tified in person, may be reversed only if a reviewing court

has a definite and firm conviction that an error has been

Schleifer—Nose up, but coming-down. R. 1737.

“T ooked like someone took a fist and run it into the nose of °

‘the ship”—continued straight down. R. 1737. Nose up try-'

ing to climb 15 to 20 minutes. R. 1743.

- Saumier—It wasn’t straight down. R. 1790.

They were yelling—somebody yelled “we’re going in.” R. |

1792. Braced himself—took long. R. 1793.

cae along big bang, boom, then snapping and cracking. R.

Eble—Little sag in the top—came straight down—long streamers

- —black strips—black and white ribbons. (No nose left when

it hit the water—all had ripped apart in ribbons and was flying

back over the tail end of the plane.) R. 1838-9.

Sellinger—800 ft. to sea level in 8 to 10 seconds. R. 1893. (He

had earlier said a couple of minutes. R. 1900). (He was

partial to the widows. R. 1906). (On deposition he had said

“started to slowly nose down” and 2% minutes). R. 1917-8;

214, 3 minutes. . R. 1947. In a Navy interview in 1960 he did

say 8 seconds. R. 1956: i +

Palumbo—Coming down on an even keel. R. 2628.

Saw torn fabric before it hit the water. R. 2638. But see R.

2642-5 and 2649. vi

48

Opinion by the United States Court of Appeals

for the Second Circwt —

made. United States v. U. 8S. Gypsum Co., 333 U. S. 364,

395 (1948); McAllister v. United States, 348 U. S. 19, 20 -

(1954); Gueman v. Pichirilo, 369 U. S. 698, 702 (1962) ;

Roman Products Corp. v. DiCrasto Dairy & Food Prod-

ucts, Inc., 361 F; 2d 599 (2 Cir. 1966). F. R. Civ. P. 52(a).

The remaining claims on appeal have little substance.

Appellants contend that the judge pre-determined the

case. A review of the entire record fails to bear out any

such claim. The judge’s expressed satisfaction when wit-

' nesses were produced who hopefully could shed some light

on the probable causes of the tragedy is far from a showing

of bias or preference for one side or the other.

Appellants « »ntend that the exclusion of a photostatic

copy of an IBM ecard, Ex. 29 for identification found in

Goodyear’s files, was prejudicial error. The card pur-

ported to show a conclusion in some Naval record that

the accident was caused. by failure of the seam in flight.

The card, however, appears to have been insufficiently

identified as to source, and even if admissible, its exclu-

‘sion was harmless error in view of Vincelli’s testimony

as to his conduct of the Navy envelope investigation, the

opinion formed and the basis for it. It appears from the

colloquy, R. 740, that the Navy was unwilling to produce

its accident report, but it also appears, R. 741, that all the

testimony and exhibits before the Kary Board were made

available to counsel.

We have considered the other claims of error in the

admission and exclusion of evidence and find them without

basis.

Judgment affirmed.

-

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