Petition for Writ of Certiorari — Bibler v. Young

Supreme Court brief1974

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JUL 26 3574

MICHA

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

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q4-1%

ANN E. BIBLER, ADMX. OF THE ESTATE OF

RALPH BIBLER, DECEASED, ET AL.,

Petitioners,

No.

vs.

BERRY H. YOUNG, JR., ET AL.,

and

THE UNITED STATES OF AMERICA and

THE FEDERAL AVIATION ADMINISTRATION,

Respondents.

_—_——

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

HARRY L. RIGGS, JR.

Riggs & Riggs

25 Erlanger Road

Erlanger, Kentucky 41018

NELSON LANCIONE

42 East Gay Street

Columbus, Ohio 43215

COUNSEL FOR PETITIONERS

—— es

COURT INDEX PRESS, INC. — 809 Walnut Street, Cincinnati, Ohio 45202 — (513) 241-1450

INDEX

Page

2 sens sees Maceneny SRE ERLE CE TOT TA of eet: > - l

PR. 6 OO drach el pyceet (ace An Se 2

Peewions prewrnted «22... 5... ees esclcc..... 2

Statutory provisions involved .................... 2

wenn We Oe Ces iiss oa ee 3

Reasons for granting the writ

1. The decision below conflicts with the decisions

of other Courts of Appeals as to the standard

of care required of government air traffic con-

secs sep MRRLET PLP eR eas he ie 5

2. The interpretation of 14 C.F.R. Section 91.87

adopted by the Court below raises significant

probleins important to the safe operation of air

iets Ee CE ae REAL tes ann aA, 8

3. The decision below conflicts with the decisions

of other Courts of Appeals as to the proper in-

terpretation of 14 C.F.R. Section 91.87. .......__. 12

sCoxsaeircsrcspma CCE OTe RAS 15

CITATIONS

Cases: Page

Cattarro v. Northwest Airlines, Inc., 236 F. Supp. 889

CEs EP ere oS cay er rec eee eros ras ll

Eastern Airlines v. Union Trust Co., 221 F. 2d 62 (D.C.

ee re aioe ee ae eee, ely ate ree eee 5

George v. American Airlines, Inc., 295 F. 2d 311 (7th

+ 2.) ee Nea b one ue ae cla arian gery 13

Gill v. United States, 429 F. 2d 1072 (5th Cir. 1970) .... 6

Hartz v. United States, 387 F. 2d 870 (3th Cir. 1968) .... 6, 7

Indian ‘Towing Company, Inc. v. United States, 350

ae WR GEES ces hes onta Gees ieee a Rehets ean ree 5

Ingham v. United States, 373 F. 2d 227 (2nd Cir. 1967)... 5

New York Airways, Inc. v. United States, 283 F. 2d

i CR OE iis oe x ee eacee ee eae Ie ceo. 13

Spaulding v. United States, 455 F. 2d 222 (9th Cir. 1972)... 6

United Airlines v. Weiner, 335 F. 2d 379 (9th Cir. 1954)... 7

United States v. Furumizo, 381 F. 2d 965 (9th Cir. 1967)... 6

United States v. Miller, 303 F.2d 703 (9th Cir. 1962) ....13, 14

United States v. Union Trust Company, 350 U.S. 907

MN arcs, et PA Lr OH ah ln el Ded ee rt 5

Statutes:

De Ga CO NE oo borg orc ee 12-12

es |. Sarees eee Renee ene a 2, 12

BO Saws OO ENE a ov Sas dcdacdacosecace 2, 8, 10, 11

IN THE

SUPREME COURT OF THE UNITED STATES

ANN E. BIBLER, ADMX. OF THE ESTATE Ot

RALPH BIBLER, DECEASED, ET AL...

Petitioners,

Vs.

BERRY H. YOUNG, JR., ET AL...

and

THE UNITED STATES OF AMERICA and

THE FEDERAL AVIATION ADMINISTRATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The petitioner, Aun E. Bibler, Administratrix of the Estate

of Ralph Bibler, deceased, respectfully prays that a writ of

certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit entered

in this proceeding on February 27, 1974.

OPINION BELOW

The opinion of the Court of Appeals was reported in 492 F.2d

1351 (6th Cir. 1974), and appears in the separately printed

appendix. The unreported opinion of the District Court for the

Southern District of Ohio, appears in the separately printed

appendix.

JURISDICTION

The judgment of the Court of Appeals for the Sixth Circuit

was entered on February 27, 1974. The jurisdiction of this

Court is invoked under 28 U.S.C. Section 1254(1)

QUESTIONS PRESENTED

1. Whether or not 14 C.F.R. Section 91.67, the Right of

Way Rules, are applicable to aircraft operating within air

ticflic control areas, and if so, was respondent, Young, neg-

ligent in failing to observe the provisions thereof?

2. For purposes of 14 C.F.R. Section 91.87 regarding

radio contact with control towers, is approach control an

entity of the control tower as that term is construed in Sec-

tion 14 Section 91.87?

3. Was the United States, through its agent, the Federal

Aviation Administration, negligent in failing to warn the de-

cedent, Bibler, of the presence of another aircraft in com-

peting airspace?

4. Was the United States, through its agent, the Federal

Aviation Administration negligent in failing to adhere to its

procedural guide lines and advise decedent, Bibler, to con-

tact local control at the outer marker?

5. Whether the proximate cause of the collision of the two

aircraft approaching the same runway was the faiture of ap-

proach control to observe the danger and warn the pilot?

STATUTORY PROVISIONS INVOLVED

(Printed in separately bound Appendix )

Code of Fedegsal Regulations, Chapter 14:

Section 1.67 Right of Way Rules; except water

operations.

Section 91.87 (a}, (b) Operation at airports with oper-

ating control towers.

STATEMENT OF THE CASE

The jurisdiction of the Federal Court was invoked in the

case as the action was brought under the Federal Tort Claims

Act (18 U.S.C. Section 1346(b)).. The action was brought by

the petitioner, Aun Bibler, as Administratrix of her husband's

estate against the United States and the Federal Aviation

Administration for the wrongful death of her husband who

was killed in a mid-air collision. Petitioner also sued re-

spondent’s Young and Ohio Aviation Distributors, Inc., the

pilot and owner of the other plane.

In a related state case Sundin, the owner of the air-

craft in which Bibler was killed, sued all the respondent's

for property damage. By stipulation of all parties the cases

were tried in the United States District Court for the Southern

District of Ohio. Judge Rubin held that the petitioner's claims

were barred by the contributory negligence of the deceased

pilot.

In affirming the judgment of the District Court, the Court

of Appeals held that the approach controller at the Port Co-

lumbus Airport was guilty of negligence for failing to tell the

pilot Bibler to contact the local controller, but that this neg-

ligence was not the proximate cause of the collision. (App. p.

3). The Court of Appeals found that respondent, Young was

not guilty of any negligence. The court also found Bibler

contributorily negligent in that he failed to maintain con-

tact with the control tower while in an airport traffic area.

(App. pp. 14-15).

The mid-air collision occurred approximately two miles east

of Port Columbus Airport, Columbus, Ohio on April 10, 1968.

The petitioner's decedent, Bibler, was an instructor-pilot in

aircraft 39J, and respondent, Young was piloting ISN. The

respondent, United States and the Federal Aviation Admini-

stration operate the control tower at Port Columbus Airport.

The control tower at Columbus Airport is divided into separ-

ate functions; Approach Control and Local Control are

relevant to case at bar. Both aircraft were approaching Run-

way 28L at the airport. 18N for the purpose of landing and

39J was completing a second practice instrument approach

and had informed Approach Control of his intention to con-

duct a third. Approximately one-fourth of the rear section of 39]

was severed in the collision including the entire tail section.

It immediately fell to the ground killing Bibler and a student

pilot. 18N, with a portion of the tail section of 39] wrapped

around its propeller made a safe emergency landing in a

nearby field.

The reconstruction of the events preceding the collision are

based entirely upon the tape recordings of all transmissions

made to and by Approach and Local Control. A typed state-

ment of these transmissions including time sequence is con-

tained in pages 172 through 189 of the Appendix to the Appel-

lants’ Brief contained in the record transmitted to the Court. At

1457:50, 39] requests a second practice instrument approach af-

tor having successfully completed a first. Approach Contro! im-

mediately acknowledged and then at 1502:26 Approach Con-

trol instructs 39] to turn to a heading of 260 degrees inter-

cept the final approach course and clears him for a straight-

in instrument approach to Runway 28L. At the same time

39] informs Approach Control he plans to execute a third

missed approach and not to land. At 1503:23 Approach Con-

trol informs Local Control on the intercommunication line

of 39J’s presence on the localizer and intorms Local Control

to turn 39J south if he gets in the way. At 1503:47 Approach

Control informs 39] he is one mile from the outer marker

and that he will be spaced in reference to a Lake Central

Nord aircraft approaching Runway 28L.

Between 1503:47 and 1504:24, 18N contacts Local Control

and identifies himself as two miles south of the outer marker.

During the same period Approach Control and Local Control

are exchanging conversations on the intercommunication line

regarding the location of the Approach Controller's wife.

Shortly after 1504:24 Local Control advises 18N to plan to

land on Runway 28L and that he is number two behind a

Lake Central Nord. ‘At 1504:34 Local Control informs Ap-

proach Control of the presence of 18N south of the outer

marker. Next Local Control next informs 18N that he be-

lieves he has him in sight and clears him to land on Runway

28L. At 1507:45, 39] advises Approach Control that he is

“just a beam off Western Electric.” It is at this approximate

point that ISN strikes 39J on the left rear side of 39] and

at an angle of approximately 30 degrees.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH

THE DECISIONS OF OTHER COURTS OF AP-

PEALS AS TO THE STANDARD OF CARE RE-

QUIRED OF GOVERNMENT AIR TRAFFIC CON-

TROLLERS.

The exemptions of Federal Tort Claims Act were held not

to preclude recovery against the government for the neg-

ligence of Air Traffic Control for landing two aircraft on

the same runway in Eastern Airlines vy. Union Trust Company,

221 F. 2d 62 (D.C. Cir. 1955), aff'd. sub nom., United States

v. Union Trust Company, 350 U.S. 907 (1955). After this

decision the duty of the air traffic controler has been ex-

panded in scope commensurate with the requirements of air

safety. The duty to warn is based on the simple principal

that once the government has assumed a function or service,

it is liable for negligent performance. Indian Towing Com-

pany, Inc. v. United States, 350 U.S. 61, 64-65, (1955). The

lower standard of care imposed on the government by the

Court below is in conflict with the standard imposed by other

Circuits and merits review by this Court.

The Second Circuit in Ingham v. United States, 373 F. 2d

227 (2nd Cir. 1967), cert. denied, 389 U.S. 931 (1967), held

that the controller had to do more than merely comply with

operating procedures required by ATC manuals. The con-

troller’s twelve minute delay to advise the pilot of a change

in weather was deemed negligence and a proximate cause of

the crash of the airliner.

The same standard was imposed on ATC by the Ninth

Circuit in United States v. Furumizo, 381 F. 2d 965 (9th Cir.

1967), wherein the pilot had been given the procedures

manual warnings regarding wake turbulence, but proceded

to land as the controller watched. The Court found an

“overriding duty” of safety that went beyond the require-

ments of the procedures manual and held there was a duty

to repeat the warning when it was apparent to ATC that

the pilot was in obvious danger.

In Hartz v. United States, 387 F. 2d 870 (Sth Cir. 1968),

the Fifth Circuit in deciding the duty of government air

traffic controllers held that before a pilot can be held legally

responsible for the movement of his aircraft he must know,

or be held to have known, those facts which were then ma-

terial to the safe operation of his aircraft. In Hartz, the con-

troller's warning to the pilot to “watch the prop wash” was

held to be insufficient warning of a wake turbulence. The

controller was held to have a superior duty because of both

the controller's better physical position for observation and

his experience. The controller's negligence in failing to de-

lay the take-off for a reasonable time was held to have been

the proximate cause of the crash of a small plane on take-

off into the turbulence from the prior take-off of a com-

mercial airliner. Thus, establishing that pilot action could

not be the proximate cause until he is charged with all the

facts.

The duty of the air traffic controller was similarly decided

by the Ninth Circuit in Spaulding v. United States, 455 F. 2d

222 (9th Cir. 1972). The controller is required to give all

information and warnings specified in his manuals, and in

certain situations he must give information beyond the man-

uals. Spaulding, supra, cited Hartz, supra, as an example of

where the situation requires the controller to give additional

warnings as the controller is better qualified to evaluate the

actual situation.

The Fifth Circuit, again in Gill v. United States, 429 F. 2d

1072 (5th Cir. 1970) similarly held the duty of the United

States to exercise due care in providing services to airplane

pilots rests either upon requirements of procedures manuals

or upon general pilot reliance upon the government for the

given service.

In United Air Lines v. Weiner, 335 F. 2d 379 (9th Cir.

1954), warnings beyond those prescribed in the manual were

required when danger is known only to federal personnel.

In Weiner, the controller failed to warn aircraft of the po-

tential invasion of its airspace by a military jet.

Of the entities involved Approach Control alone possessed

all the essential information necessary to avoid the crash.

(App. p. 11). Thus the government of all the parties in-

volved was better qualified to evaluate the situation and

required by the standard set forth in Hartz, supra, to warn

the aircraft of the danger. The Court of Appeals affirmed the

District Courts’ finding that the radar screen used by Ap-

proach Control was available to alert the controller of the

decreasing separation between the two planes.

Under the standards set forth in Hartz, and the other cited

cases, Bibler cannot be held legally responsible for the move-

ment of his aircraft until he knows or can be held to have

known, those facts which were material to the safc operation

of his aircraft. Bibler did not know, nor was he capable of

knowing where 18N was located. Approach Control possessed

such knowledge. It was this negligence of Approach

Control that proximately caused this collision, not any

negligence on Bibler’s part. Bibler’s failure to contact Local

Control can not be considered proximate cause when Ap-

proach Control has a duty to warn pilots of danger before

the pilot is legally responsible.

The conflicting lesser degree of care required by the de-

cision below is exemplified by the fact that Approach Control

failed to even give the warnings required by procedures

manuals, Under Section 674 of the Terminal Air Traffic

Control Manual (App. D), the Approach Controller is re-

quired to issue certain instructions to the pilot regarding

switching to Local Control. This he failed to do. Approach

Control did not even satisfy these requirements. Thus, the

court below has set forth a standard far below those decided

by other Courts of Appeals requiring the government to give

warnings beyond those prescribed in the manuals.

These decisions because of conflicting nature of the duty

prescribed for the air traffic controller involves questions of

import beyond the parties involved in this case. If the de-

cision below is allowed to stand the safety of operations at

major airports will be jeopardized. The Sixth Circuit has im-

posed a standard of care on the government that is not com-

mensurate with the task undertaken by the Federal Aviation

Administration, namely the safety of air traffic in this county's

airports. The decision of the court below and those of the

Fifth, Second and Ninth Circuits need be reconciled to en-

sure a uniform standard.

2, THE INTERPRETATION OF 14 C.F.R. SEC-

TION 91.87 ADOPTED BY THE COURT BELOW

RAISES SIGNIFICANT PROBLEMS IMPORTANT

TO THE SAFE OPERATION OF AIR TRAVEL.

The Federal Aviation Administration Regulations interpreted

by the court below includes:

Communications with control towers operated by the

United States. No person may within an airport traffic

area, operate an aircraft to, from, or on an airport hav-

ing a control tower operated by the United States un-

less two-way radio communications are maintained be-

tween that aircraft and the control tower. . . i4 C.F.R.

Section 91.87(b) (1968).

The Court of Appeals affirmed the District Judge's finding

that Bibler was guilty of contributory negligence consisting

of failing to contact the Tower as he passed the outer marker

and failing to maintain radio cont. ‘t with the Tower while

in the airport traffic area. (App. p. 15). This finding of neg-

ligence was premised a “violation of the above regulation.”

In affirming the finding of contributory negligence the court

below discusses Bibler’s failure to communicate with the

“Tower.” The District Court and the Court of Appeals are

both confused by terms. The regulation quoted above pro-

hibits flying within an airport traffic area unless two-way

radio communications is maintained between the aircraft and

the control tower. The term control tower is not limiting.

In Appendix E is contained an excerpt from the FAA’s In-

strument Flying Handbook. It is important to note that the

term “control tower” refers to five different subgroupings.

The term control tower includes Local Control, Ground Con-

trol, Clearance Delivery, Departure Control and Approach Con-

tro). For some reason, both the District Court and the Court of

Appeals concluded that the control tower, commonly referred

to as Local Control, and Approach Control are two separate

and distinct entities. This is not the case and was never

intended by the regulation. Bibler was in contact with the

“control tower” by maintaining two-way communications with

Approach Control. Both the Sixth Circuit Court of Appeals

and the District Court are wrong and have missed the point

of the regulation when they hold otherwise.

In the opinion of the Court of Appeals at App. p. 2, the

District Court’s finding of fact concerning the functions of the

control tower are set forth. The findings state:

“The control of traffic in and around the Columbus Air-

port is a function of the Federal Aviation Administra-

tion. This facility operates from the Columbus control

tower. There is a separation of function between Ap-

proach Control (APC) which monitors by radar traffic

which is outside of a five mile radius from the tower,

and Tower Control, also known as Local Control (TWR),

which has jurisdiction over air traffic within the five mile

radius.” (Emphasis added).

The court correctly states the relationship among the terms

control tower, Approach Control and Lecal Concrol. That

is, that the term control tower includes the functions of Local

Control and Approach Control. Yet in finding Bibler con-

tributorily negligent, thus barring any recovery, both the

Disizict Court and the Court of Appeals concluded he had

violated the regulation requiring contact with the control

tower. The undisputed facts show Bibler maintained radio

contact with Approach Control. Thus the finding of con-

tributory negligence is based on the erroneous assumption that

the term control tower does not encompass the Approach

Control function.

The finding that Bibler violated 14 C.F.R. 91.87 by failing

to maintain radio contact with the tower can only be based

on the erroneous conclusion that the control tower does not

include the Approach Controller. It is this erroneous con-

struction of the Federal Air Regulations that this Court

should review. Such construction will have a harsh effect on

the operation of air traffic control facilities endangering the

safety of all persons flying in and out of tower controlled air-

ports in the United States.

This interpretation permits the government to, in effect.

become two parties in this and other actions against the United

States for negligent performance of control tower functions.

On the facts of this case, as found by both the District Court

and the Court of Appeals, Bibler was in radio contact with

Approach Control at Port Columbus Airport, and concurrent-

ly respondent, Young, was communicating with Local Con-

trol. Both planes were being guided toward the same run-

way by two units of the same Air Traffic Control facility. A

case of the right hand not knowing what the left is doing,

certainly a violation of the high standard of care imposed on

the government by the line of decisions in the Fifth, Ninth,

aud Second Circuits, supra.

The Federal Aviation Administration employees who con-

trol air traffic in our major airports are the agents of one party,

the United States of America, which is responsible for their

negligent performance that was proximate cause of this tragic

accident. To exoncrate the United States because two of its

agents, who were in interphone contact with cach other, di-

rected two planes to approach the same runway at the same

time is ludicrous.

In one case where this issue was present, a District Court

held that one government air traffic controller cannot. au-

thorize an airplane to fly a collision course with another air-

plane then being monitored by another government control-

ler and escape liability by claiming neither controller had a

duty to separate them. Cattarro v. Northwest Airlines, Inc.,

236 F. Supp. 889 (D.C. Vir. 1964).

It is important that this Court determine the proper in-

terpretation of 14 C.F.R. Section 91.87. The respective duties

incumbent on pilot and controller must be determined. In

order for this to be accomplished, the proper interpretation

of the term control tower must be established. The pro-

cedures manuals, charts, and regulations that govern aviation

are predicated on the Court's interpretation of the air traffic

controller's duty of care. With nationwide aviation traffic,

it is both impractical and dangerous for this standard to vary

among the Circuits. Further, it is conceivable that follow-

ing this decision one aircraft in contact with the one govern-

ment controller might land on one runway, while a second

aircraft, in contact with a second government controller, would

land on the same runway at the same time with catastrophic

results. To avoid such consequences petitioner respectfully

submits that this Court should review this case and establish

a standard of care for government air traffic control fa-

cilities commensurate with the responsibility for human life

placed upon them.

3. THE DECISION BELOW CONFLICTS WITH

THE DECISIONS OF OTHER COURTS OF AP-

PEALS AS TO THE PROPER INTERPRETATION

OF 14 C.F.R. SECTION 91.67.

In finding that Respondent, Young, was not guilty of any

negligence, the Sixth Circuit held that he had not violated

the right of way rules promulgated in the Federal Air Reg-

ulations:

(e) OVERTAKING. Each aircraft that is being over-

taken has the right of way and each pilot of an over-

taking aircraft shall alter course to the right to pass will

clear.

(f) LANDING. Aircraft, while on final approach to

land, or while landing, have the right of way over other

aircraft in flight or operating on the surface. When two

or more aircraft are approaching an airport for the pur-

pose of landing, the aircraft at the lower altitude has the

right of way, but it shall not take advantage of this rule

to cut in front of another which is on final approach to

land, or to overtake that aircraft. 14 C.F.R. Section 91.-

67(e) & (f) (1973).

As stated by the Court below, Young’s plane was both above

and behind Bibler’s. (App. 18). This under the language

of Section 91.67(f) states Bibler had the right of way as he

was at the lower altitude. However, the court found that

Young could not see Bibler because of the configuration of

his plane. (App. p. 18). This finding is based on the Court’s

opinion that Young was not required to take any further

measures to observe Bibler or any other aircraft that might

be in his path. This conclusion is in conflict with the duty

imposed upon pilots by other Circuits interpreting the right

of way rules.

The argument that the rules of right of way do not apply to

Young is predicated on a note to 14 C.F.R. Section 60.14

reading in part:

“Note: Right-of-way rules do not apply when, for rea-

sons beyond the pilot’s control, aircraft cannot be seen

due to restrictions of visibility.”

The Ninth Circuit in United States v. Miller, 303 F. 2d 703

(9th Cir. 1962), held that the configuration of the aircraft

was not “beyond the pilot’s control” and thus the note did

not relieve the pilot of his duty to look out for other aircraft.

This imposes a duty on the pilot to observe the right of way

rules where by altering the plane’s position the pilot can

observe the area beneath and in front of his descending air-

craft.

Thus the holding in Miller and that of the Court below im-

poses are directly in conflict as to the standard of care im-

posed on pilots by the Federal Air Regulations dealing with

right of way, an area of aviation law whose effect on air

safety is obvious. Miller, supra, involved two aircraft that

collided while in an airport traffic area and under the control

of government air traffic controllers. Thus the right of way

rules were held applicable in the airport traffic area and

the instant case is not distinguishable on that ground.

In New York Airways, Inc. v. United States, 283 F. 2d 496

(2d Cir. 1960), the Second Circuit found the pilot of a heli-

copter negligent in that he failed to manuever his aircraft

to keep the touchdown area in sight. Thus imposing a duty

to observe as in United States v. Miller, supra. Also in George

v. American Airlines, Inc., 295 F. 2d 311 (7th Cir. 1961), the

crew of an air carrier were held negligent for failure to main-

tain a proper lookout. These cases all exhibit the imposition of

a higher standard of care on pilots to observe other aircraft than

does the decision of the Court below.

The Sixth Circuit states that the respondent, Young, was

not in violation of the right-of-way rules as he had a clearance

to land and the petitioner did not. The petitioner respect-

fully submits that this determination is an error. The fact that

Bibler was not going to actually land does not alter the fact

that he was cleared to approach runway 28L and should

have beeu observed by the respondent, Young. Further the

Court below stated:

“At the time and place concerned, Young did not know

that what turned out to be Bibler’s plane (391) was even.

in the airport traffic area.” (App. p. 18).

This statement is clearly an error. The flight transcript re-

veals that the local controller warned Young of Bibler’s pres-

ence. When Young communicated to the Columbus tower that

he was approaching the airport for a landing and was lo-

cated south of the outer marker the Columbus local con-

troller responded:

“18N south of charlie mike plan runway 28L presently no.

2 following a nord on a right base leg for 28L and watch

for traffic coming up on the marker, be making an aisle s

(instrument) low approach.”

The local controller had immediately prior to this point been

told of the presence of 39] on the ILS approach.

The foregoing demonstrates that the conclusion of the Sixth

Circuit Court of Appeals that Young had not violated the right-

of-way rules was in error. This erroneous application of the

rules should be reversed by this Court. More importantly,

and even disregarding the Court's factual conclusions. The

standard of care imposed on pilots by the Sixth Circuit Court

of Appeals departs from that standard imposed by the Ninth

Circuit in United States v. Miller, supra. The Sixth Circuit

Court of Appeals has lowered the standard of care imposed

on pilots at the expense of air safety. The conflict in in-

terpretation of the Federal Air Regulations, and the differing

standards imposed thereunder must be resolved by this Court.

COIXCLUSION

For these reasons, a writ of certiorari should issue to re-

view the judgment and opinion of the Sixth Circuit.

Respectfully submitted,

HARRY L. RIGGS, Ji

RIGGS & RIGGS

25 Erlanger Road

Erlanger, Kentucky 41017

NELSON LANCIONE

42 East Gay St.

Columbus, Ohio 43215

Counsel for Petitioner

' FILEFTywy

AUG 3 197%

———————————————————————

IN THE | MICHAEL RODAK, !2_1

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

ANN E. BIBLER, ADMX. OF THE ESTATE OF

RALPH BIBLER, DECEASED, ET AL.,

Petitioners,

VS.

BERRY H. YOUNG, JR., ET AL.,

and

THE UNITED STATES OF AMERICA and

THE FEDERAL AVIATION ADMINISTRATION,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

HARRY L. RIGGS, JR.

Riggs & Riggs

25 Erlanger Road

Erlanger, Kentucky 41018

NELSON LANCIONE

42 East Gay Street

Columbus, Ohio 43215

COUNSEL FOR PETITIONERS

Te ES RD

COURT INDEX PRESS, INC. — 809 Walnut Street, Cincinnati, Ohio 45202 — (513) 241-1450

TABLE OF CONTENTS

Appendix A

Eee ee ree

Appendix B

Opinion of The Court of Appeals ..................

Appendix C

Opinion of The District Court ...........0000.....

Appendix D

Terminal Air Traffic Control Manual ..............

Appendix E

Excerpts From FAA Instrument Flying Handbook ... .

Appendix F

Judgment of The Court of Appeals ................

Page

IN THE

SUPREME COURT OF THE UNITED STATES

ANN E. BIBLER, ADMX. OF THE ESTATE OF

RALPH BIBLER, DECEASED, ET AL.,

Petitioners,

vs.

BERRY H. YOUNG, JR., ET AL.,

and

THE UNITED STATES OF AMERICA and

THE FEDERAL AVIATION ADMINISTRATION,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX A.

REGULATIONS INVOLVED

14 C.F.R. § 91.67 Right-of-way Rules; Except Water Opera-

tions.

(a) GENERAL. Except when, because of restrictions to

visibility beyond the pilot’s control, another aircraft cannot

be seen, each person operating an aircraft shall comply with

this section. When a rule of this section gives another air-

craft the right-of-way, he shall give way to that aircraft and

may not pass over, under, or ahead of it, unless well clear.

(ec) OVERTAKING. Each aircraft that is being overtaken

has the right-of-way and cach pilot of an overtaking aircraft

shall alter course to the right to pass well clear.

(f) LANDING. Aircraft, while ou final approac’: to land,

or while landing have the right-of-way oy other aircraft

in flight or operating on the surface. When two or more air-

craft are approaching an airport for the purpose ef landing,

the aircraft at the lower altitude has the righi-of-way, but

it shall not take advantage of this rule to cul in front of

another which is on final approach to laud, or to overtake

that aircraft.

14 C.F.R. § 91.87 Operation at airports with operating control

towers,

(a) GENERAL. Unless otherwise authorized or required

by ATC, each person operating an aircraft to, from, or on an

airport with an operating control tower shall comply with

the applicable provisions of this section.

(b) COMMUNICATIONS WITH CONTROL TOWERS

OPERATED BY THE UNITED STATES. No person may,

within an airport traffic area, operate an aircraft to, from, or

on an airport having a control tower operated by the United

States unless two-way radio communications are maintained

between that aircraft and the control tower. However, if the

aircraft radio fails in flight, he may operate that aircraft and

land if weather conditions are at or above basic VFR weather

minimums, he maintains visual contact with the tower, and he

receives a clearance to land. If the aircraft radio fails while

in flight under IFR, he must comply with Section 91.127.

APPENDIX B.

OPINION OF THE COURT OF APPEALS

Nos. 73-1201-02

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ANN E. Biscer, ApMx. or THE Estate

OF Raven Biscen, DECEASED, ET AL., |

Plaintiffs-Appellants, |

Vv.

Berry H. Younc, JR., ET AL,

Defendants-Appellees. | ApreaAL from the

. United States District

Unitep STATES OF AMERICA. AND Tue | Court for the South-

Feperar AVIATION AvMinistration,| ¢™ District of Ohio.

Third-Party Plaintiffs-Appellants,

Vv. {

Berry H. Younc, JR., er At. |

Third-Party Defendants-Appellees.

Decided and Filed February 27, 1974.

Before: Wrick, Epwanvs and CeLesrezze, Circuit Judges.

Enwanps, Circuit Judge. The widow of a deceased airplane

pilot and instructor appeals from the judgment of the United

States District Court for the Southern District. of Ohio dis-

missing her complaint. The District Judge who tried this

case without a jury found for the defendants on the ground

of contributory negligence on the part of her husband who

was killed in an airplane crash. The suit was brought under

the Federal Tort Claims Act (18 U.S.C. § 1346(b) (1970) ),

by Ann Bibler, as Administratrix of her husband's estate, on

behalf of herself and their minor child against the United

States and the Federal Aviation Administration, the operator

of the control tower at the Columbus, Ohio, airport where

the crash occurred. She also sued the owner and operator

of the other aircraft which collided with Bibler’s plane. The

United States answered denying negligence and claimed in-

demnification against defendants Young and Ohio Aviation

Distributors, Inc., the operator and the owner of the other

plane.

By stipulation of the parties, another related state case was

submitted to the court wherein Sundin, the owner of the

plane in which Bibler was killed, sued all the same defendants

for property damage occasioned by their claimed negligence.

In turn Ohio Aviation counterclaimed for the damages to its

plane.

The cases were heard before Judge Rubin in the United

States District Court for the Southern District of Ohio. Judge

Rubin held that the plaintiffs’ claims were barred by the con-

tributory negligence of the deceased pilot, Bibler, in that “He

failed to advise the Local Control that he had passed the

cuter marker” in making a simulated landing at Port Colum-

bus International Airport, and in that he failed to make and

maintain radio contact with the Local Controller while over

the airport area. The District Judge held that pilot Young

was not guilty of negligence and awarded $17,000 damages to

Ohio Aviation for the damage to the plane Young was flying.

He also held that the approach controller at the Port Colum-

bus Airport was guilty of negligence for failing to tell pilot

Bibler to contact Local Control. But he held that this neg-

ligence was not the proximate cause of the accident. The

District Judge also held that the Local Controller at the

Port Columbus Airport was not guilty of negligence.

There were four parties involved in this air collision which

resulted in the death of two people. This record, as we view

it, indicates that any one of the four might have prevented

the crash. But actionable negligence does not consist of failing

to take extraordinary measures which hindsight demonstrates

would have been helpful. It consists of doing or failing to

do what a reasonable man would do under the circumstances

contronting him.

This appeal disputes the interpretation of the applicable rules

and regulations and the inferences from the facts drawn by

the District Judge. Many of the facts in this case were stipu-

lated and none of them are currently in dispute.

We recite them from the District Judge’s findings of fact:

“FINDINGS OF FACT

Finding of Fact (1)

General Conditions at Columbus International Airport

Columbus International Airport, known by pilots as

CMH, is located in Franklin County, Ohio, immediately

east of the City of Columbus. Its main runways lie in

an east-west direction. Airport runways are identified by

the first two digits of direction. Accordingly, the two

main runways of Port Columbus are 28 left and 28 right,

indicating an east to west bearing of approximately 280

degrees. When used west to east the same runways are

known as 10 left and 10 right, signifying a heading of

approximately 100 degrees. The precise magnetic bear-

ing of 28 left and 28 right is 276 degrees.

Runway 28 left is 10,700 feet long and 150 feet wide.

It is equipped for instrument landing and includes an

electronic extension in the same compass heading referred

to as a ‘beam.’ At a point 5.4 nautical miles (6.2 statute

miles) east of runway 28's left threshold is the ‘outer

marker.’ An outer marker is an electronic device that ad-

vises a pilot when he has passed over it on his way to

a landing.

Between the outer marker and the runway threshold

there is a middle marker which likewise electronically

advises the pilot that he has passed over such marker.

A pilot may receive such information by a Beacon Mark-

er Indicator which will cause a light to flash on the

instrument panel and an audible radio signal to be

given, or by a low frequency ADF receiver which will

receive in Morse Code the identifying letters of the

marker. The outer marker on runway 28 left is identi-

fied by the letters CM and is known by the term ‘Charlie

Mike.’

A plane need not contain such equipment in order to

use part of the electronic extension of runway 28 left.

A plane can be equipped merely to ascertain its posi-

tion in relation to the electronic extension or ‘localizer

beam’ and be guided onto the localizer for ultimate

landing on the runway.

The control of traffic in and around the Columbus Air-

port is a function of the Federal Aviation Administra-

tion. This facility operates from the Columbus control

tower. There is a separation of function between Ap-

proach Control (APC) which monitors by radar traffic

which is outside of a five mile radius from the tower,

and Tower Control, also known as Local Control (TWR),'

which has jurisdiction over air traffic within the five

miie radius. APC operations extend for approximately

forty miles around Port Columbus. Local Control is

housed at the top of the control tower. In 1968, when

this accident occurred, Local Control did not have radar

equipment and relied on visual sightings to identify and

direct landing aircraft. The two control departments

communicate with pilots on assigned frequencies: APC

on 119.0 megahertz and TWR on 121.5. Because their

jurisdictions are exclusive, pilots do not customarily com-

municate with both departments simultaneously.

When a pilot is flying under instrument flight regula-

tions (IFR), he communicates with Approach Control

until he reaches the outer marker. At this time he is

1vhe terms Local Control, Local Tower or Tower as used

herein are synonymous and are all identified at TWR.

advised to contact Local Control in the tower on its

frequency and report his presence. When a pilot is flying

under visual flight regulations (VFR) he is not required

to advise Approach Control of his presence, but contacts

instead Local Control when he is in the vicinity of the

outer marker.

Finding of Fact (2)

Cherokee N42 39J (39 Juliet)?

On April 10, 1968, Ralph D. Bibler, decedent, was a

duly qualified and licensed commercial pilot and flight in-

structor with over 1000 hours of pilot flight time. He

Was in command of a Piper Cherokee aircraft, Registra-

tion No. N4239J. At approximately 3:00 p-m. on that

date, he was instructing a student, one David Dunnick,

in the procedures for instrument landing at Port Co-

lumbus. Mr. Dunnick had logged 123 hours of flight

time. The plane was equipped with an omni-converter

for localizer guidance. It was not equipped with an

ADF radio Beacon Marker Indicator or any other elec-

tronic means of establishing position in relation to the

outer marker. Prior to 3:00 p.m., 39 Juliet was operating

under Instrument Flight Regulations (IFR) procedures

with student Dunnick at the controls. Dunnick was Wear-

ing a ‘hood,’ a vision limiting, device which focused his

attention upon the instrument panel. As the operating

pilot stedent Dunnick occupied the left hand seat. In-

structor Bibler occupied the right hand seat. Weather

conditions at Port Columbus on April 10, | 968, were such

that visual flight regulations (VFR) were in effect. Pro-

ceeding under IFR conditions in a VFR day placed an

obligation upon Bibler to ect as ‘safety pilot’ and ob-

serve the classical admonition under VFR conditions of

‘see and be seen,’

2 There is an identification System used by pilots and con-

trollers which involves the last two digits and letter of a plane’s |

registration. Specific words are used to avoid letter confusion.

Thus Cherokee N42352 was known as “39 Juliet” and Bonanza

N8318N wae referred to as “18 November.”

Finding of Fact (3)

Bonanza N8318N (18 November)

Defendant Berry D. Young, a retired United States Air

Force Lieutenant Colonel, on April 10 was piloting Beech-

craft Bonanza No. 8318N. Defendant Young at the time

had logged in excess of 7,000 hours of pilot flying time.

He was employed as a salesman by defendant Ohio Avi-

ation Company, a distributor of Beechcraft products. The

instrument equipment of 18 November is not significant

since Young was flying, on the date in question, under

VFR conditions. One such instrument, the air speed

indicator, was known to be inaccurate in its operation.

Mr. Young had taken off at approximately 14:30 (2:30

p.m.) from the Wood County Airport at Parkersburg,

West Virginia. At 1500 (3:00 p.m.) he was proceeding

in a westerly direction parallel to Interstate 70 and im-

mediately south thereof. His direction would approxi-

mate the magnetic heading of runway 28 and he would

be approximately 2 miles south of an eastward projection

thereof. He first contacted Local Control at 1504 (3:04

p.m.) locating himself “2 miles south of Charlie Mike”

(outer marker),

Finding of Fact (4)

Approach Control (APC)

Approach Control at the Port Columbus tower was

made aware of the presence of 39 Juliet at 1440:54 (2:40

p-m.). Its pilot requested a practice instrument approach

at the Port Columbus Airport. In answer to its question

Approach Control was advised that 39 Juliet was rated

and equipped for an ILS approach. It is a matter of

definition whether it was so equipped. 39 Juliet could

electronically locate the localizer beam: it could not elec-

tronically find either the outer marker or the middle

marker. The outer marker at Port Columbus can be

visually determined and on the first ILS approach, Local

Control was advised when 39 Juliet passed the marker.

This was in accordance with previous instruction from

Approach Control. An ILS practice approach is treated

as a missed approach. 39 Juliet was instructed to exe-

cute a right turn to heading 50°, ascend to an altitude

of 2,700 feet and return to the frequency of Approach

Control. At 1457:50, 39 Juliet did so return and was

guided or ‘vectored’ in a clockwise direction for a second

approach to the runway. Thereafter Approach Control

gave 39 Juliet the following instructions: 1500:16 head-

ing 100°; 1501.25 heading 180°; 1502:26 heading

260°.

At 1503:47, 39 Juliet was noted by Approach Control

as ‘on the localizer a mile from the marker” At no

time did Approach Control have radio contact with 18

November. APC was, however, aware that 18 Novem-

ber would land on runway 28 left.

Pinding of Fact (5)

Local Control (TWR)

Local Control did not have in 1968 a radar scope that

would assist its controllers (or Tower Control) in lo-

cating and monitoring a specific plane. The tower con-

trollers were required to make visual locations assisted

by binoculars when those were indicated. TWR had

contact with 39 Juliet on the first approach from 1449,

when it was advised that 39 Juliet had passed the outer

marker, until 1457:50, when the pilot returned to the

frequency of Approach Control. At 1503:23 TWR was

advised that 39 Juliet was on the localizer. Approach

Control advised that if 39 Juliet got in TWR’s way he

was to be turned south.

Approximately 37 seconds later at 1504, 18 November

advised TWR that he was 2 miles south of Charlie

Mike for landing. TWR instructed 18 November to land

on runway 28 left number two following a flight of Lake

Central Airlines in a Nord aircraft. This transmission in-

cluded notice of traffic coming upon the outer marker

intending an ILS low approach. The term ‘low approach’

or ‘low go’ refers to a landing approach that will not

be completed.

At no time after 1457:50 was there radio communica-

tion between 39 Juliet and Local Control although no

later than 1504:47, 39 Juliet did in fact cross the outer

marker. 39 Juliet never contacted TWR during the time

it was inside the outer marker. Its last advice at 1507:45

was made to Approach Control and its radio in the wreck-

age was found to be tuned to 119.0 mg. Approach Con-

trol frequency (Ex. 45 at 8).

Finding of Fact (6)

Time and Location

In midair collision cases, the relative positions of the

aircraft are of sufficient importance to be considered in

detail. The Court finds that the positions of the two air-

craft over the crucial period of time prior to their crash,

were as follows:

POSITION

39] 18N

Prior to 1500

1459:07 North East of Unknown — heading

Tower 2 mi. westerly from

heading 50° Parkersburg, W. Va.

1500-1501

1500:16 Heading 100° Unknown — heading

westerly from

Parkersburg, W. Va.

1501-1502

1501:25 Heading 180° Unknown — heading

westerly from

Parkersburg, W. Va.

1502-1503

1502:26 Heading 260° Unknown — heading

westerly from

Parkersburg, W. Va.

1503-1504

1503:23 On the localizer Unknown — heading

westerly from

Parkersburg, W. Va.

1503:47 On the localizer Unknown — heading

a mile from the westerly from

marker Parkersburg, W. Va.

1504-1505

1504:14% On the localizer 2 mi. s. of Charlie Mike

1504:44"2 On the localizer down by Pandora’s Box

1505-1506

1505:34° On the localizer South of the approach

course

1506-1507

1506:41 On the localizer In sight [of Tower]

1507-1508

1507:45 A beam Western

Electric

Finding of Fact (7)

Knowledge of Parties

(A) Knowledge of 18 November — After contacting

Local Control at 1504, Young was advised to plan to

land on runway 28 left following the Lake Central Nord

and to watch traffic coming up on the outer marker mak-

ing an ILS low approach. The term, ‘coming up on the

outer marker,” indicates a position of such traffic at that

time cast of the outer marker. Because only 13 seconds

had elapsed from the location of 39 Juliet at one mile

from the outer marker, this statement was correct. At

1505:47° he was advised of the Lake Central Nord about

a mile out of the airport and cleared to land on runway

28 left.

(B) Knowledge of 39 Julict — Following the vectoring

that had ended at 1502:26, 39 Juliet had received from

Approach Control a clearance for a straight in ILS 28L

approach. At 1503:47 he was advised that he was on the

localizer one mile from the outer marker and spaced in

reference to a Lake Central Nord three miles north of the

airport. The term ‘spaced in reference to Lake Central

Nord’ is not a clearance to land nor is it a landing se-

quence. At 1507:45, 39 Juliet knew he was inside the

outer marker since he advised Approach Control ‘a beam

of Western Electric.’ No conversation at any time in this

approach was had with Local Control.

Approach Control knew that 39 Juliet was heading 260°

intending another missed approach. At 1503:47 he knew

that 39 Julict was on the localizer one mile from the

outer marker. At 1504:34 Approach Control knew that

18 November was intending to land on 28 left. At

1504:44% Approach Control knew that 18 November was

in the vicinity of Pandora’s Box heading for the approach

to 28 left. At no time did Approach Control speak to 18

November. Alone of the four parties involved, Approach

Control possessed all of the critical information. Two

planes no more than three miles apart were planning to

use the same runway approach and were converging

thereon. The radar scope that had previously located 39

Juliet ‘one mile from the outer marker’ and 18 November

‘down by Pandora’s Box’ was available to alert Approach

Control of the decreasing separation between the two

planes.

(D) The knowledge of Local Control — At 1503:23 he

knew that 39 Juliet was on the localizer. At 1504 he

knew that 18 November was 2 miles south of the outer

marker. At 1505:44° he knew that 18 November was

south of the approach and could see the Lake Central

Nord. At 1505.51° he was advised that 18 November

would land a little long. At 1506:41 he had 18 November

in sight and cleared him to land on runway 238 left. He

had no precise knowledge of the location of 39 Julict.

Neither the communication of 1503:47 identifying 39 Juli-

et one mile from the outer marker nor the communica-

tion of 1507:45 identifying 39 Juliet ‘just a beam of West-

ein Electric’ was received by the Tower since these

communications were on Approach Control frequency.

Bearing on local control’s lack of knowledge concerning

the location of 39 Juliet is the fact that as late as 1507:44

he inquired whether that plane was within the outer

marker.” (Footnotes 3, 4 and 5 omitted.)

The law applicable to this Federal Tort Claims Act action

is, of course, that of the State of Ohio, where the accident

occurred. Richards v. United States, 369 U.S. 1 (1962). Ohio

law makes no provision for a comparative negligence, and

as the District Judge held, it bars recovery to any plaintiff

whose negligence contributed as a proximate cause to the

happening of the accident." Bahm v. Pittsburgh & Lake Erie

Rd. Co., 6 Ohio St. 2d 19 (1966): Drown v. Ohio Traction Co.,

76 Ohio St. 234 (1907).

As we have indicated, the District Judge held that Bibler’s

contributory negligence consisted of failing to contact the

Tower as he passed the outer marker and failing to maintain

radio contact with the Tower while in the airport traffic area.

It is appellant’s contention, however, that since Bibler was

in contact with Approach Control, he was in contact with the

Tower and that he was under no legal duty to report his pass-

ing of the outer marker.

We believe that several Federal Aviation Administration

Regulations are applicable:

(1) The pilot in command of an aircraft is directly

responsible for, and is the final authority as to, the op-

eration of that aircraft. 14 C.F.R. § 91.3 (1973).

(2) Communications with control towers operated

by the United States. No person may, within an airport

traffic area, operate an aircraft to, from, or on an airport

having a control tower operated by the United States

' Plaintiff is suing as Administratrix of the estate of her deceased

— and hence, his contributory negligence would bar her

claim.

unless two-way radio communications are maintained be-

tween that aircraft and the control tower. However, if

the aircraft radio fails in flight, he may operate that air-

craft and land if weather conditions are at or above

basic VFR weather minimums, he maintains visual con-

tact with the tower, and he receives a clearance to land.

If the aircraft radio fails while in flight under IFR, he

must comply with § 91.127. 14 C.F.R. § 91.87(b) (1973).

(3) The pilot in command of each aircraft operated

under IFR in controlled airspace shall have a continuous

watch maintained on the appropriate frequency and shall

report by radio as soon as possible—

(a) The time and attitude of passing each desig-

nated reporting point, or the reporting points specified

by ATC, except that while the aircraft is under radar

control, only the passing of those reporting points spe-

cifically requested by ATC need be reported;

(b) Any unforecast weather conditions encountered:

and

(¢) Any other information relating to the safety of

flight. 14 CLF.R. § 91.125 (1975).

(4)(e) Overtaking. Each aircraft that is being over-

taken has the right of way and each pilot of an overtaking

aircraft shall alter course to the right to pass well clear.

({) Landing. Aircraft, while on final approach to land,

or While landing, have the right of way over other air-

craft in flight or operating on the surface. When two

or more aircraft are approaching an airport for the pur-

pose of landing, the aircraft at the lower altitude has the

right of way, but it shall not take advantage of this rule

to cut in front of another which is on final approach to

land, or to overtake that aircraft. 14 C.F.R. § 91.67(e) &

(f) (1973).

Likewise applicable to our problems on this appeal is a

sentence from the Airman’s Information Manual:

“During the time an IFR flight is operating in VFR

weather conditions, it is the direct responsibility of the

pilot to avoid other aircraft, since VFR flights may be op-

erating in the same area without knowledge of ATC (air

traffic control).” Airman’s Information Manual (AIM, 1-

58).

Of stmilar applicability is a Port Columbus regulation which

places on the Approach Controller the specific duty of telling

the pilot of an airplane which he has cleared for an approach

to contact Tower Control when he reaches the final approach

fix. TersunaL Am Trarric Contro: Manvat, Rule 674(d).

With these facts and these rules and regulations in mind,

we conclude that the District Judge’s finding of contributory

negligence on the part of pilot Bibler must be affirmed and

therefore the two original causes of action were properly dis-

missed.

Under Rule 52(a) of the Federal Rules of Civil Procedure,

this court cannot set aside the findings of fact of the District

Judge unless we can say that they are “clearly erroneous.”

Judge Rubin's findings are not only not “clearly erroneous”;

we believe they are support by the great weight of the

evidence in this record. Indeed, as pointed out above, aside

from interpretations of the regulations and inferences from the

facts, they are undisputed.

We now turn directly to Judge Rubin’s conclusions pertaining

to pilot Bibler’s contributory negligence. Like the District

Judge, we believe that 14 C.F.R. § 91.87(b) (1973), spe-

cifically forbids operating any aircraft within an airport traffic

area (described at the time as within five miles of the Tower

and below 2,000 feet) which airport has a control tower op-

erated by the United States “unless two-way radio communica-

tions are maintained between that aircraft and the control

tower.” Like the District Judge, we reject the appellant’s con-

tention that Bibler satisfied this rule by maintaining two-way

radio contact with the Approach Controller. This record which

contains much expert testimony, demonstrates conclusively

that when the term “Control Tower” or “Tower” is used in

connection with operations “within an airport traffic area,”

the terms refer to local control and not to approach control.

This conclusion is strengthened by the fact that under visual

flight conditions, such as prevailed on the date of this acci-

dent, Approach Control would not routinely have radio coutact

with in-bound traffic. Like Young’s plane (18N), such traffic

would ordinarily report only to the Tower (local control)

at the outer marker. Thus Approach Control would be power-

less to talk to or guide away from danger most of the planes

within the airport traffic area.

Since the State of Ohio has adopted Federal Air Regula-

tions as its own (See Ohio Rev. Code, $§ 4561.05. 4561 14),

we believe that Bibler’s vistaiion of 14 C.F.R. $ 91.87(b) was

also a violation of Ohio law, and negligence per se. Maryland

Casualty Co. v. United States, 231 U.S. 342, 349 (1920); East-

ern Airlines y. Union Trust Co., 221 F.2d 62 (D.C. Cir.),

affd sub nom. United States vy. Union Trust Co., 350 US.

907 (1955).

We also affirm the District Judge’s conclusion that pilot Bib-

ler was guilty of contributory negligence in failing to “advise

local control that he had passed the outer marker.”

Strangely, the federal regulations on this score (See $ 91.123

previously quoted) are not sufficiently definite to support this

conclusion as a matter cf law. But this record shows that the

weight of the expert evidence does support the District Judge’s

statement in this regard. The testimony of expert witness

Culley is persuasive:

Q. And as a pilet, when an aircraft is making an ac-

tual or simulated ILS approach, is there anything the

pilot must do in passing over the outer marker as re-

quired by good operating procedures?

A. Yes, he should most definitely report the final ap-

proach fix or the outer marker in this case to the local con-

troller or to approach control.

THE COURT: Mr. Pangia, excuse me just a moment.

May I ask you a question in this regard: You said he

should.

THE WITNESS: Yes, sir.

THE COURT: Now, does that mean he must or is

it just good practice to do so?

THE WITNESS: It is not required by Federal Air

Regulations that he do so, but it is a part of the recom-

mended air traffic contre! procedures on which all in-

strument flying is predicated.

THE COURT: Okay. His failure to do so does not

subject him to any discipline? Aside from the question

of negligence, I don’t want to get into that, but his fail-

ure to do as you stated is not a violation of any of the

FAA regulations?

THE WITNESS: No, sir, it is not. ,

THE COURT: Thank you. You may proceed.

Q. (By Mr. Pangia) Is it fair to say, Mr. Culley,

that there are many things which pilots should do in

the operation of the aircraft that are not spelled out ex-

actly in the Federal Aviation Regulations?

A. Absolutely.

Q. Mr. Cully, if an aircraft was making an ILS ap-

proach, practice or otherwise, and he was not told to

change from approach to the tower frequency, what, if

anything should the pilot do?

A. As a pilot, if he has not been told to report or

instructed to report as he approaches the marker, he

should query approach control as to whether or not he

wants him to change frequency to local control. If in

the event we have a frequency congestion and he can’t

get to him or can't get a reply, he automatically changes

to local control, the reason being, if I may say, as a pilot,

I am interested in the traffic ahead of me. If | con-

tinue to monitor approach control frequency, I am only

getting traffic that is behind me and to the side of me.

If I am on the tower frequency, I can hear other traffic

and communication with the tower, and I can determine

their position from that report.

Q. And if an aircraft were not making a radar ap-

proach, Mr. Culley, would he get his landing sequence

and clearance to land from the local controller?

A. Landing sequence and clearance to land is assigned

by the approach controller under these conditions.

Q. I am sorry.

A. I beg your pardon, under tower control.

Q. Is it done by the approach controller in that con-

dition?

A. No, sir, it is not.

While we recognize that Culley’s testimony might be af-

fected by his employment with defendant, Federal Aviation

Administration, other witnesses, including plaintiff Sundin

(owner of the plane Bibler was flying) furnish confirmation

of the essential points of this testimony.

Finai'v. the Airman’s Manual contains this paragraph:

Report Leaving Final Approach Fix

Pilots conducting a prescribed instrument approach are

reminded of the importance of reporting to ATC or an

FSS when over the final approach fix on final approach.

ATC may predicate se 5 between departures and ar-

rivals and between successive arrivals on the basis of this

report; therefore, failure to make this report may com-

promise separation criteria. Airman’s Information Manual

This instruction is vividly underlined by the comment of

the Local Controller immediately after the mid-air collision

on April 10, 1968:

“He [Bibler (39])] never called me at the marker.”

Since pilot Bibler’s failure to report at the Marker or to

contact Local Control deprived Local Control of knowledge

that Bibler’s plane (39J) had passed the marker and was in

proximity of Young’s plane (18N), it served to prevent action

by Local Control to warn and separate the converging planes.

It also served to deprive Bibler of knowledge of Young's clear-

ance to land and Young of Bibler’s presence within the air-

port traffic area. Clearly the negligence we have described

on Bibler’s part was a proximate cause of the accident. Such

contributory negligence under the Ohio cases cited earlier

bars recovery by either plaintiff Administratrix or plaintiff

Sundin in the original actions, regardless of whether or not the

negligence of the Approach Controller (in failing to tell Bib-

ler to switch to Local Control) contributed as a proximate

cause also.

There remains for our consideration only appellant's vehe-

ment protest against recovery by Ohio Aviation of the $17,000

worth of damages suffered by the Bonanza 18N piloted by

appellee Young. Here appellant relies upon a regulation which

places the burden of yielding the right of way upon an over-

taking plane (See 14 C.F.R. $91.67) i.e. upon Young. Since

visual flight conditions prevailed at the time and place con-

cerned, the fact that neither pilot ever saw the other is ap-

parently explained by the fact that Young's plane (18N) was

both above and behind Bibler’s, and hence, as found by the

District Judge, Young could not see Bibler and Bibler could

not see Young because of the configuration of their planes.

At the time and place concerned Young had a clearance to

land and was proceeding according to it. Bibler did not have

a clearance to land; he had only a clearance to approach.

Thus, under 14 C.F.R. §$ 91.67(f), Young had the right of

way over Bibler. At the time and place concerned Young

did not know that what turned out to be Bibler’s plane (39J)

was even in the airport traffic area. Expert testimony sup-

ports the District Judge’s conclusion that Young's failure te

take extraordinary measures to observe below him by side

slipping and veering off his course (while landing) was nct

negligence — even though by hindsight such action might well

have prevented the accident.

For these reasons and others spelled out in the District

Judge’s Findings of Fact Opinion and Conclusions of Law,

the judgments of the District Court are affirmed.

APPENDIX C.

OPINION OF THE DISTRICT COURT

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CIVIL NO. 70-56

CIVIL NO. 70-82

ANN E. BIBLER, admx. of the estate of Ralph D.

Bibler, deceased, etc.,

PLAINTIFF,

vs.

BERRY H. YOUNG, JR., et al.,

DEFENDANTS.

DONALD L. SUNDIN,

dba SUNDIN AVIATION COMPANY,

PLAINTIFF,

vs.

UNITED STATES OF AMERICA and

FEDERAL AVIATION ADMINISTRATION,

DEFENDANTS.

FINDINGS OF FACT, OPINION AND

CONCLUSIONS OF LAW

(Filed October 6, 1971)

INTRODUCTION

In dealing with a midair collision and the circumstances

which culminate in such a tragedy, a court, of necessity,

enters a complex and somewhat alien world. It is a world

inhabited by uniquely trained people, speaking a strange

but precise jargon and utilizing highly sophisticated ma-

chines. It is an inter-dependent and self-contained world in

which the pilots and air controllers must share information

with one another and where failure to do so may bring swift

disaster. The knowledge necessary to avoid catastrophe may

initially be within the peculiar knowledge of only one of the

several participants, for there are major contrasts between

the almost unlimited physical vision of a pilot in a cockpit

and the circumscribed visual limitations of a controller in a

darkened radar room. But conversely a pilot exists in an

environment where at times weather conditions, physical

sursoundings and speed of his aircraft make him dependent

upon the greater electronic vision of the controller's radar

scope.

Perhaps most importantly, we are dealing with a world

where the failure to share essential information results, often

enough, in all to apparent disasters. One such accident oc-

curred on April 10, 1968, at Port Columbus Airport, Colum-

bus, Ohio. This accident forms the subject matter of the

present law suit as to which the Court makes the following

findings of fact.

FINDINGS OF FACT

Finding of Fact (1)

* General Conditions at Columbus International Airport

Columbus International Airport, known by pilots as CMH,

is located in Franklin County, Ohio. immediately east of

the City of Columbus. Its main runways lie in an east-west

direction. Airport runways are identified by the first two

digits of direction. Accordingly, the two main runways of

Port Columbus are 28 left and 28 right, indicating an east to

west bearing of approximately 280 degrees. When used

west to east the same runways are known as 10 Jeft and 10

right, signifying a heading of approximately 100 degrees. The

precise magnetic bearing of 28 left and 28 right is 276 degrees.

Runway 28 left is 10,700 feet long and 150 feet wide. It

is equipped for instrument landing and includes an elec-

tronic extension in the same compass heading referred to as

a “beam.” At a point 5.4 nautical miles (6.2 statute miles)

east of runway 25's left threshold is the “outer marker.” An

outer marker is an electronic device that advises a pilot when

he has passed over it on his way to a landing.

Between the outer marker and the runway threshold there

is 1 middle marker which likewise electronically advises the

pilot that he has passed over such marker. A pilot may re-

ceive such information by a Beacon Marker Indicator which

will cause a light to flash on the instrument panel and an

audible radio signal to be given, or by a low frequency ADF

receiver which will receive in Morse Code the identifying

letters of the marker. The outer marker on runway 28 left

is identified by the letters CM and is known by the term

“Charlie Mike.”

A plane need not contain such equipment in order to use

part of the electronic extension of runway 28 left. A plane

can be equipped merely to ascertain its position in relation

to the electronic extension or “localizer beam” and be guided

onto the localizer for ultimate landing on the runway.

‘Yhe control of traffic in and around the Columbus Air-

port is a function of the Federal Aviation Administration.

This facility operates from the Columbus control tower.

There is a separation of function between Approach Con-

trol (APC) which monitors by radar traffic which is outside

of a five mile radius from the tower, and Tower Control.

also known as Local Control (TWR),’ which has jurisdiction

over air traffic within the five mile radius. APC operations

extend for approximately forty miles around Port Colum-

bus. Local Control is housed at the top of the control tower.

In 1968, when this accident occurred, Local Control did not

have radar equipment and relied on visual sightings to

identify and direct landing aircraft. The two contro] depart-

ments communicate with pilots on assigned frequencies: APC

on 119.0 megahertz and TWR on 121.5. Because their juris-

dictions are exclusive, pilots do not customarily communicate

with both departments simultaneously.

When a pilot is flying under instrument flight regulations

(IFR), he communicates with Approach Control until he

reaches the outer marker. At this time he is advised to

contact Local Control in the tower on its frequency and re-

port his presence. When a pilot is flying under visual flight

regulations (VFR) he is not required to advise Approach Con-

trol of his presence, but contacts instead Local Control when

he is in the vicinity of the outer marker.

Finding of Fact (2)

Cherokee N42 39] (39 Juliet)?

On April 10, 1968, Ralph D. Bibler, decedent, was a duly

qualified and licensed commercial pilot and flight instructor

with over 1000 hours of pilot flight time. He was in com-

mand of a Piper Cherokee aircraft, Registration No. N4239J.

At approximately 3:00 p.m. on that date, he was instructing

a student, one David Dunnick, in the procedures for instru-

ment landing at Port Columbus. Mr. Dunnick had logged

123 hours of flight time. The plane was equipped with an

'The terms Local Control, Local Tower or Tower as used herein

are synonymous and are all identified as TWR.

kee N4239J was known as “39 Juliet” and Bonanza N8318N was re-

ferred to as “18 November.”

omni-converter for localizer guidance. It was not equipped

with an ADF radio Beacon Marker Indicator or any other

electronic means of establishing position in relation to the

outer marker. Prior to 3:00 p.m., 39 Juliet was operating

under Instrument Flight Regulations (IFR) procedures with

student Dunnick at the controls. Dunnick was wearing a

“hood,” a vision limiting device which focused his attention

upon the instrument panel. As the operating pilot student

Dunnick occupied the left hand seat. Instructor Bibler oc-

cupied the right hand seat. Weather conditions at Port Co-

lumbus on April 10, 1968, were such that visual flight regula-

tions (VFR) were in effect. Proceeding under IFR con-

ditions in a VFR day placed an obligation upon Bibler to

act as “safety pilot” and observe the classical admonition

under VFR conditions of “see and be seen.”

Finding of Fact (3)

Bonanza N8318N (18 November)

Defendant Berry D. Young, a retired United States Air

Force Lieutenant Colonel, on April 10 was piloting Beech-

craft Bonanza No. 8318N. Defendant Young at the time

had logged in excess of 7,000 hours of pilot flight time. He

was employed as a salesman by defendant Ohio Aviation

Company, a distributor of Beechcraft products. The in-

strument equipment of 18 November is not significant since

Young was flying, on the date in question, under VFR con-

ditions. One such instrument, the air speed indicator, was

known to be inaccurate in its operation. Mr. Young had

taken off at approximately 14:30 (2:30 p.m.) from the Wood

County Airport at Parkersburg, West Virginia. At 1500

(3:00 p.m.) he was proceeding in a westerly direction parallel

to Interstate 70 and immediately south thereof. His di-

rection would approximate the magnetic heading of run-

way 28 and he would be approximately 2 miles south of an

eastward projection thereof. He first contacted Local Con-

trol at 1504 (3:04 p.m.) locating himself “2 miles south of

Charlie Mike” (outer marker).

Finding of Fact (4)

Approach Control (APC)

Approach Control at the Port Columbus tower was made

aware of the presence of 39 Juliet at 1440:54 (2:40 p.m.).

Its pilot requested a practice instrument approach at the

Port Columbus Airport. In answer to its question Approach

Control was advised that 39 Juliet was rated and equipped

for an ILS approach. It is a matter of definition whether

it was so equipped. 39 Juliet could electronically locate the

localizer beam; it could not electronically find either the

outer marker or the middle marker. The outer marker at

Port Columbus can be visually determined and on the first

ILS approach, Local Control was advised when 39 Juliet

passed the marker. This was in accordance with previous

instruction from Approach Control. An ILS practice approach

is treated as a missed approach. 39 Juliet was instructed to

execute a right turn to heading 50°, ascend to an altitude

of 2,700 feet and return to the frequency of Approach Control.

At 1457:50, 39 Juliet did so return and was guided or “vec-

tored” in a clockwise direction for a second approach to the

runway. Thereafter Approach Control gave 39 Juliet the

following instructions: 1500:16 heading 100°; 1501:25 head-

ing 180°; 1502:26 heading 260°.

At 1503:47, 39 Juliet was noted by Approach Control as

“on the localizer a mile from the marker.” At no time did

Approach Control have radio contact with 18 Noveraber.

APC was, however, aware that 18 November would land on

runway 28 left.3

3 The following dialogue appears in Exhibit 45:

TWR to APC The guy south of the Marker just talking to me he'll

be coming in for the left one.

APC to TWR I'm not talk, ah (unintelligible) I don’t see anybody.

I/C

TWR to APC Oh he said he’s just south of Charlie Mike.

TWR One eight November you did say you're just south of

Charlie Mike (unintelligible).

Finding of Fact (5)

Local Control (TWR)

Local Control did not have in 1968 a radar scope that

would assist its controllers (or Tower Control) in locating and

monitoring a specific plane. The tower controllers were re-

quired to make visual locations assisted by binoculars when

those were indicated. TWR had contact with 39 Juliet on

the first approach from 1449, when it was advised that 39

Juliet had passed the outer marker, until 1457:50, when the

pilot returned to the frequency of Approach Control. At

1503:23 TWR was advised that 39 Juliet was on the localizer.

Approach Control advised that if 39 Juliet got in TWR’s way

he was to be turned south.

Approximately 37 seconds later at 1504, 18 November ad-

vised TWR that he was 2 miles south of Charlie Mike for

landing. TWR instructed 18 November to land on runway

28 left number two following a flight of Lake Central Air-

lines in a Nord aircraft. This transmission included notice of

traffic coming upon the outer marker intending an ILS low

approach. The term “low approach” or “low go” refers to a

landing approach that will not be completed.

At no time after 1457:50 was there radio communication

between 39 Juliet and Local Control although no later than

1504:47, 39 Juliet did in fact cross the outer marker. 39 Juliet

never contacted TWR during the time it was inside the outer

marker. Its last advice at 1507:45 was made to Approach

Control and its radio in the wreckage was found to be tuned

to 119.0 mg. Approach Control frequency. (Ex. 45 at 8).4

1/C

APC to TWR Yes he’s down by Pandora’s Box.

wc Ah eastbound.

hy A to TWR Help you any?

TWR to APC Yea.

4 The speed of 39 Juliet cannot be precisely determined, but it can

be approximated. The airplane had traveled from one mile east

of the outer marker at 1503:47 to “just a beam of Western Electric”

at 1507:45. This distance approximately 4.4 miles. The accident

y une

Finding of Fact (6)

Time and Location

In midair collision cases, the relative positions of the air-

craft are of sufficient importance to be considered in detail.

The Court finds that the positions of the two aircraft over

the crucial period of time prior to their crash, were as fol-

lows:5

POSITION

39J 18N

Prior to 1500

1459:07 North East of Unknown — heading

Tower 2 mi. westerly from

heading 50° Parkersburg, W. Va.

1500-1501

1500:16 Heading 100° Unknown — heading

westerly from

Parkersburg, W. Va.

1501-1502

1501:25 Heading 180° Unknown — heading

westerly from

Parkersburg, W. Va.

occurred sometime between 1507:45 and 1508:00. At 1507:45 39

Juliet had traveled a distance of 4.4 miles in three minutes and

fifty-eight seconds. Since the speed was well in excess of 60 m.p.h.,

39 Juliet crossed the outer marker less than one minute after 1503:47.

$5 Information for the time sequence has been obtained in the fol-

lowing manner: Exhibit 45, the National Transportation Safety Board

Aircraft Accident Report, contains at pages 81 to 90 typewritten

communication between Approach Control and aircraft and transcrip-

tion of the radio Tower and aircraft. Wherever stated in that exhibit,

the times are accepted as accurate. In addition, Exhibit 46, also

identified as Exhibit BH-43, contains a taped re-recording of the

official tape. A stop watch has been used to determine the length

of times between transcriptions which are not noted on the official

tapes. Such times are to be considered as approximations only and

are identified with an asterisk in this finding. In no event has the

Court used such approximations for the basis of any findings of

fact or of any conclusions of law. All times hereafter are referred

to ae of a 24-hour clock wherein the equivalent of 1500 hours

is 3:00 p.m.

1502-1503

1502:26

1503-1504

1503:23

1503:47

1504-1505

1504:14%

1504:44%

1505-1506

1505:34°

1506-1507

1506:41

1507-1508

1507:45

39)

Heading 260°

On the localizer

a mile from the

marker

On the localizer

A beam Western

Electric

18N

Unknown — heading

westerly from

Parkersburg, W. Va.

Unknown — heading

westerly from

Parkersburg, W. Va.

Unknown — heading

westerly from

Parkersburg, W. Va.

2 mi. s. of Charlie Mike

down by Pandora’s Box

South of the approach

course

In sight [of Tower]

Finding of Fact (7)

Knowledge of Parties

(A) Knowledge of 18 November — After contacting Local

Control at 1504, Young was advised to plan to land on runway

28 left following the Lake Central Nord and to watch traffic

coming up on the outer marker making an ILS low approach.

The term, “coming up on the outer marker,” indicates a po-

sition of such traffic at that time east of the outer marker.

Because only 13 seconds had elapsed from the location of

BI vo

39 Juliet at one mile from the outer marker, this statement

was correct. At 1505:47° he was advised of the Lake Central

Nord about a mile out of the airport and cleared to land on

runway 28 left.

(B) Knowledge of 39 Juliet — Following the vectoring

that had ended at 1502:26, 39 Juliet had received from Ap-

proach Control a clearance for a straight in ILS 28L ap-

proach. At 1503:47 he was advised that he was on the

localizer one mile from the outer marker and spaced in ref-

erence to a Lake Central Nord three miles north of the airport.

The term “spaced in reference to Lake Central Nord” is not

a clearance to land nor is it a landing sequence. At 1507:45,

39 Juliet knew he was inside*the outer marker since he ad-

vised Approach Control “a beam of Western Electric.” No

con.ersation at any time in this approach was had with Local

Conirol.

proach Control knew that 39 Juliet was heading 260° in-

tending another missed approach. At 1503:47 he knew that

39 Juliet was on the localizer one mile from the outer marker.

At 1504:34 Approach Control knew that 18 November was

intending to land on 28 left. At-1504:44% Approach Control

knew that 18 November was in the vicinity of Pandora’s Box

heading for the approach to 28 left. At no time did Approach

Control speak to 18 November. <Alone of the four parties

involved, Approach Control possessed all of the critical in-

formation. Two planes no more than three miles apart were

planning to use the same runway approach and were con-

verging thereon. The radar scope that had previously located

39 Juliet “one mile from the outer marker” and 18 November

“down by Pandora’s Box” was available to alert Approach

Control of the decreasing separation between the two planes.

(D) The knowledge of Local Control — At 1503:23 he

knew that 39 Juliet was on the Jocalizer. At 1504 he

knew that 18 November was 2 miles south of the outer marker.

At 1505:44° he knew that 18 November was south of the ap-

proach and could see the Lake Central Nord. At 1505:51°

he was advised that 18 November would land a little long.

At 1506:41 he had 18 November in sight and cleared him to

land on runway 28 left. He had no precise knowledge of the

location of 39 Juliet. Neither the communication of 1503:47

identifying 39 Juliet one mile from the outer marker nor the

communication of 1507:45 identifying 39 Juliet “just a beam of

Western Electric” was received by the Tower since these

communications were on Approach Control frequency. Bear-

ing on Local Control's lack of knowledge concerning the loca-

tion of 39 Juliet is the fact that as late as 1507:44 he in-

quired whether that plane was within the outer marker.

Finding of Fact (9)

Miscellaneous Facts of Slight Significance

Evidence indicated an erroneous setting of the altimeter in

39 Juliet. This setting, the advice to Approach Control of

the electronic equipment in 39 Juliet, the inaccurate air speed

indicatcr in 18 November, and the angle of collision do not

appear to be significant items in terms of proximate cause.

Expert testimony established that the angle of difference be-

tween the headings of the two aircraft was approximately 30

degrees at the time of collision. While counsel have variously

suggested that the inexperience of student pilot Dunnick,

gusts of wind or erroncous headings might have caused such

angle of collision, it does not appear that this angle bears upon

the legal issue involved. None of the foregoing relates to

proximate cause of the collision.

Ill

OPINION

In the opinion of this Court the evidence that has been

adduced herein clearly indicates negligence on the part of

Bibler. He failed to advise the Local Control that he had

passed the outer marker. In fact, he continued to report to

Approach Control until moments before the actual collision

30 .

when he stated that he was “a beam of Western Electric.”

Perhaps either a lapse of memory on his part or some other

undiscoverable circumstance caused Bibler, an inexperienced

pilot, to remain on Approach Control's frequency inside of the

outer marker, where Approach Control had no jurisdiction.

If we assume 39 Julict was traveling at about 70 miles per

hour, Bibler was traveling, for at least three minutes, inside

of the outer marker and on Approach Control's frequency. It

is difficult to justify this conduct or to find it to be non-

negligent. The conduct additionally was a proximate cause

of the collision because it placed Bibler in air space unknown to

the Tower and not reasonably ascertainable by it on line of

sight.

While it may be asserted that an agency of the defendant

United States was also negligent in failing to instruct 39 Juliet

to contact the Tower at the outer marker, such negligence can-

not absolve the plaintiff.

Plaintiff's decedent, Ralph Bibler, was contributorily neg-

ligent hecause of his failure to contact the Tower as he passed

the outer marker; to advise, for a period in excess of three

minutes prior to the accident, that he was west of the marker;

and to advise the Tower of his location “a beam of Western

Electric.” These failures on his part demonstrate that he

neglected to exercise due care for his own safety.

There is insufficient evidence of negligence by either the

Tower or defendant Barry Young. Based upon the information

supplied to it by the other parties, Tower had reason to be-

lieve that Bibler was, at all times material to the events herein,

east of the outer marker. The location of Bibler on the localizer

at 1503:23 supplied Tower with only his compass heading.

Bibler, at the time this transmission was received by the Tower,

could have been as much as 20 miles east of the outer marker.

As we have noted above, the transmission of 1503:47 which

placed 39 Juliet on the localizer one mile from the outer marker

was not received by the Tower. The failure of the Tower to

locate 39 Juliet visually under the weather conditions prevail-

ing on the date of the accident does not rise to the level

of proximate cause.

There was no apparent negligence on the part of defendant

Young. He proceeded in accordance with information sup-

plied to him by the Tower. He followed instructions by check-

ing in with the Tower which cleared him to land, and he ul-

timately lined up his plane for landing in conformity with

these instructions. We do not believe that the inaccuracy of

his air speed indicator bears in any significant manner upon

the issue of proximate cause.

Nor do we think that Young's failure to visually observe

39 Juliet constitutes negligence per se. The inherent con-

figuration of small planes, such as both the Cherokee and the

Bonanza, create substantial areas of non-visibility. The course

that Young followed required a left turn prior to his final

approach. By raising his right wing he additionally obliterated

the area in which the Cherokee was traveling. This maneuver

was necessary to his expected landing and there was no evi-

dence that Young expected to or could have, at any time, seen

39 Juliet. He had no reason to anticipate Bibler west of

the marker. We conclude that Young proceeded in the

fashion of a reasonably prudent pilot. Plaintiff's evidence failed,

in our opinion, to show specific acts of negligence on Young's

part.

. Finally, under settled principles of Ohio law, the doctrine

of last clear chance has no application in the case at bar to

relieve Bibler from the consequences of his own contributory

negligence. It is true that Approach Control was the only

entity that knew, at a time immediately prior to the accident,

of the relative locations of the two planes. Beginning at

1503:47 it had precisely located 39 Juliet: at 1504:44 it had

located 18 November. For a period of between three and

four minutes Approach Control had the capability of noting

that two planes were in a collision course. Ironically, Bibler’s

own contributory negligence in failing to contact Tower had

the effect of retaining him on Approach Control's frequency.

Approach Control could have instructed Bibler to take evasive

action or it could have advised Tower to order Young to do

the same.

Approach Control’s fai‘ure to do this, however, does not

relieve Bibler from the effects of his contributory negligence

through the doctrine of last clear chance. It was stated in

Brock v. Marlatt, 128 O.St. 435, 438 (1934) that:

The last clear chance rule has no application to any

situation except where the injured party through his

own negligence has placed himself in a position of peril.

The doctrine presupposes his antecedent fault and neg-

ligence, as a result of which he is in a place of peril. His

negligence does not absolve the defendant from liability,

if, knowing such peril, defendant fails thereafter to ex-

ercise ordinary care to avoid causing injury. Such charge

is not proper where the claimed negligence of the defen-

dant and the contributory negligence of the plaintiff are

concurrent. (emphasis added)

That the plaintiffs concurrent and on-going negligence pre-

vents the application of the counter defense of last clear

chance, was further underscored in Cleveland Ry. Co. v. Mas-

terson, 126 O.St. 42, 51 (1932) where Justice Jones wrote

that:

It is only in those cases of prior negligence on plaintiff's

part, not actively continuing to the time of injury, that

the last clear chance rule applies.

Also see Peters v. Transfer Co., 7 Oisio St.2d 143, 150 (1966);

Lones v. Detroit, Toledo and Ironton Ry. Company, 398 F.2d

914, 920 (C.A. 6 1968) (applying Ohio law), cert. denied

393 U.S. 1063 (1969); Pennsylvania Co. v. Hart, 101 O.St.

196 (1920); Columbus Green Cabs, Inc. v. Seip, Ohio App.,

65 O.L.Abs. 428, 115 N.E.2d 5 (1952); Pflugh v. United States,

138 F.Supp. 470 (W.D. Pa. 1951) (applying Ohio law).

As we have noted above, Bibler was negligent in failing to

communicate with the Tower at the time he passed the outer

marker. This negligence continued until and was concurrent

with the negligence that resulted in the accident. Because

Bibler’s negligence contributed to the proximate cause that

resulted in his death, Ohio law bars his recovery. See Buhm

v. Pittsburgh & L.E. R. Co., 6 O.St.2d 192, 35 O.Ops.2d 307

(1966); Lehman v. Leffler, 78 O.St. 448 (1908); Brown v.

Northern Ohio Traction Co., 76 O.St. 234, 81 N.E. 328 (1907);

Northwest Airlines v. Glenn L. Martin Co., 224 F.2d 120 (C.A.

6 1955), cert. denied 350 U.S. 937 (1956); Nice v. Pennsylvania

Ry. Co., 168 F Supp. 641 (N.D. Ohio E.D. 1959): McDonough

v. Buckeye S.S. Co., 103 F.Supp. 473 (N.D. Ohio E.D. 1952),

afd. 200 F.2d 558 (C.A. 6 1952), cert. denied 345 US. 926

(1953). Since this negligence continued until the accident,

the doctrine of last clear chance cannot alter this result.

CONCLUSIONS OF LAW

1. The Court has jurisdiction over this action under the

Federal Tort Claims Act, 18 U.S.C. 1346(b).

2. The law of the State of Ohio, the place where the alleged

acts or omissions of negligence took place, governs this ac-

tion. See Richards v. United States, 369 U.S. 1 (1962).

3. Under the law of the State of Ohio contributory neg-

ligence of the plaintiff, if it contributes to the proximate

cause of the accident, is a complete defense and bar to re-

covery. See Brown v. Northern Ohio Traction Co., supra;

Lehman v. Hayman, supra; Nice v. Pennsylvania Ry. Co.,

supra; McDonough vy. Buckeye S.S. Co., supra.

4. Federal Aviation Regulations provide that the pilot-in-

command is responsible for, and is the final authority as to,

the operation of that aircraft. See 14 C.F.R. 91.3; United

States v. Miller, 303 F.2d 710 (C.A. 9 1962); United States v.

Schultetus, 277 F.2d 322 (C.A. 5 1960), cert. denied 364 USS.

828 (1960); Hamilton v. United States, No. C-48398, —— F.

Supp. —— (N.D. Calif. Oct. 21, 1971).

VN ¢

5. Federal Aviation Regulations provide that no person

may within an airport traffic area, or in the case of Port Co-

lumbus within the outer markers, operate an aircraft to,

from or on an airport having a control tower operated by the

United States unless two-way radio communications are main-

tained between that aircraft and the control tower. See 14

C.F.R, 91.87.

6. Bibler’s failure to contact the tower once he passed

over the outer marker was negligence as a matter of law.

7. Bibler’s conduct, as it violated the conclusions of law

set forth in Nos. 5 and 6 above, constitutes contributory neg-

ligence as a matter of law and bars his recovery under the

authorities cited in Conclusions of Law Nos. 2 and 3.

8. The paramount responsibility for the safe operation of

aircraft under VFR weather conditions continues to rest

with the pilot of the aircraft. See United States v. Miller, supra;

United States v. Schultetus, supra; Hamilton vy. United States,

supra; Compagnie Nationale Air France vy. Port of New York

Authority, et al., 10 Avi. 18, 356 (E.D. N.Y. 1969), aff'd. 427

F.2d 951 (C.A. 2 1971); American Airlines, Inc. v. United

States, 418 F.2d 180 (C.A. 1 1969); Stanley v. United States,

239 F.Supp. 973 (N.D. Ohio 1969): Tilley v. United States,

375 F.2d 678 (C.A. 4 1967).

9. Bibler’s negligence continued from the time his plane

passed the outer marker until the time of impact and con-

tributed to the proximate cause of his injuries. Therefore,

under Ohio law, the doctrine of last clear chance does not

relieve him of the consequences of his contributory negligence.

See Cleveland Ry. Co. v. Masterson, supra; Brock v. Marlatt,

supra; Lones vy. Detroit, Toledo & Ironton Ry. Co., supra;

and cases cited at 14, supra. .

10. The evidence fails to establish negligence, as a matter

of law, on the part of defendant Young.

11. Since the negligence of the plaintiff's decedent was a

proximate cause of the accident, plaintiffs cannot recover.

12. For the reeson set forth in Conclusion of Law No.

11, Sundin, the decedent's master and plaintiff in No. 70-82,

cannot recover because of the contributory negligence of his

servant.

13. Plaintiffs’ causes of action must be dismissed.

14. For the reasons set forth in Conclusions of Law Nos.

11 and 12, defendant United States of America’s cross-claims

will be dismissed as moot.

15. Defendant United States of America is entitled to a

judgment in its favor.

The partics shall submit a form of judgment, in accordance

with the views and conclusions expressed herein, within ten

(10) days from the filing date hereof. No costs.

It is so ORDERED.

/s/ CARL B. RUBIN

United States District Judge

APPENDIX D.

TERMINAL AIR TRAFFIC CONTROL MANUAL

674. ARRIVAL INSTRUCTIONS.

Issue all of the following to an aircraft before it reaches

the approach gate: (E)

a. Position with respect to the final approach fix.

b. Vector to intercept the final approach course, if required.

c. Approach clearance, except when conducting a sur-

veillance or precision approach.

d. Instructions to do one of the following:

(1) Monitor local control frequency, reporting to the

tower when over the approach fix.

(2) Contact the tower on local control frequency.

(3) Contact approach control on final approach fre-

quency if a surveillance or precision approach will be made.

(4) When radar is used to establish the final approach

fix — inform the pilot that after being advised that he is over

the fix, he is to contact the tower on local control frequency.

APPENDIX E.

EXCERPTS FROM FAA INSTRUMENT FLYING

HANDBOOK

Airport Traffic Control Towers

Jurisdiction — The ATC tower is responsible for control of

aircraft on and in the immediate vicinity of airports. Terminals

handling a large traffic volume employ specialized personnel

for operation; they use light signals, radio, and ASDE radar

(Airport Surface Detection Equipment) for control of surface

traffic. Less congested airports have fewer controllers to handle

the workload with less specialization. Organization of the

tower operation falls into the following units:

Local Control is concerned mainly with VFR traffic in and

#round the traffic pattern and with ground traffic. The local

controller works with the other IFR controllers to integrate

VFR and IFR flights into a smooth, safe traffic flow in and

out of the airport.

Ground Control directs the movement of aircraft on the

airport surface, working closely with other tower positions.

The controller relays clearances from ARTCC to departing

IFR flights unless a special position is assigned that function.

Clearance Delivery is accomplished by a separate controller

at most busy terminals where heavy ground traffic and fre-

quent IFR departures require division of the workload.

Departure Control originates departure clearances and in-

structions to provide separation between departing and arriving

flights. Although the physical location of this controller varies

at different terminals — in the tower at some locations, in

separate radar installations at others — he coordinates closely

with the Approach Controller and Local Controller.

Approach ( Arrival) Control formulates and issues approach

clearances and instructions to provide separation between ar-

riving IFR aircraft. using radar if available.

APPENDIX F.

UNITED STATES COURT OF APPEALS

FORK THE SIXTH CIRCUIT

No. 73-1201

ANN E. BIBLER, ADMINISTRATRIX OF THE ESTATE

OF RALPH D. BIBLER, DECEASED, ON BEHALF

OF HERSELF AS SURVIVING SPOUSE AND MINOR

CHILD, AND DONALD L. SUNDIN D/B/A SUNDIN

AVIATION CO.,

Plaintiffs-Appellants,

vs.

BERRY H. YOUNG, Jr.; OHIO AVIATION COMPANY,

OHIO AVIATION DISTRIBUTORS, INC.; DAYTON

MUNICIPAL AIRPORT; UNITED STATES OF AMERI-

CA; AND THE FEDERAL AVIATION ADMINISTRA-

TION, PORT COLUMBUS AIRPORT,

Defendants-Appellees.

Before: WEICK, EDWARDS and CELEBREZZE, Circuit

Judges.

JUDGMENT

(Filed February 27, 1974)

APPEAL from the United States District Court for the

Southern District of Ohio.

THIS CAUSE came on to be heard on the record from the

United States District Court for the Southern District of Ohio

and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgments of the said

District Court in this cause be and the same are hereby af-

firmed.

It is further ordered that Defendants-Appellees recover from

Plaintiffs-Appellants, the costs on appeal, as itemized below,

and that execution therefor issue out of said District Court.

ENTERED BY ORDER OF THE COURT

/s/ JAMES A. HIGGINS

Clerk

A True Copy.

Attest:

/s/ JOUN P. HEHMAN

Clerk

Issued as Mandate: April 9, 1974

COSTS: Awarded to Appellee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.