# Petition for Writ of Certiorari — Montgomery v. Goodyear Aircraft Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1588%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 393 U.S. 841 ## Text a & = . Pn cash a i SUPREMGS COURT. & & © 23 es JUL 8 1968 | | | JOHN F. DAViS, CLERK aul Supreme Court at the United States OCTOBER TERM, 1968 * f, RutTH Mostvacsenny, as Executrix of the Estate of | ‘Orion V. Montcomery, etc., et al., . Petitioners, Vv. eee ee ee a — wre GoopyEaR AIRCRAFT CORPORATION. : PETITION FOR A WRIT OF CERTIORARI TO THE — ; UNITED. STATES COURT OF APPEALS FOR THE SECOND CIRCUIT | | 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. — - . . . ‘ ’ “ ° . S o . . . . . ° . n “ ‘ 7 ; - ia . . ‘ | * * - . o . . - . a : . : - - : , t . - “ . ‘ . ° - - . . - . % rs ; . > | . 4% a - . - . . 7 . e : ’ . : . - * oe e . raf aS . . . . e . - ’ . * . . . . 7 . e . ¢ * . . 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. . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1588%3A1. Public record. Not legal advice.