Petition for Writ of Certiorari — United States v. Union Trust Co.

Supreme Court brief1955

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INDEX

Page

Eoin c toa talemaeeinaehiaiicinie wakes dace 1

LN a ta Nal lh acre aie ie Co 2

NN os cranices medic doadtenemeine 2

EER TOOLS CAD IN 3

Statement:

rr rs. sean ndnnecabawanda 3

b. Federal regulation of air traffie..__________- 5

ST ee ee ee ear ke es 10

d. The decisions below_..............-. Hepes 15

Reasons for granting the writ._............______- 17

ESS AE ER, a Re LOTS Epa 38

Appendix A:

Opinion of the Court of Appeals. ......-.-___- la

EE ee ae eee ee 42a

Order enlarging petitioner’s time to seek rehear-

a ae 44a

Order enlarging respondents’ time to seek rehear-

| OR le SS en ee te es eee 45a

Order denying petitioner’s pe tition for rehearing

TE Ee re A ere Se eae 46a

Order denying respondents’ petition for rehear-

Re ec ctw aelbud na cactwhweuks 47a

Order denying respondents’ petition for rehear-

ing by the original division. __...........__- 48a

Order amending judgment______..____- canarias 49a

Order extending time for certiorari... .______- 5la

Mien ono a ont ak Geacaneoe canoe 52a

CITATIONS

Cases:

Chournos v. United States, 193 F. 2d 321, cer-

tiorari denied, 343 U. S. 977__.......-_-.--- 33

Clark v. United ‘States, 218 F. "2 446 asabee iss sada 37

Cooper v. O'Connor, 99 F. 2d 135, certiorari

ls HD Soe ME Eianas tcuenbeckacectses 31

Costley v. United States, 181 F. od tae 34

Dalehite v. United States, 346 U.S. 15....-..-- 16,

17, 18, 19, 22, 24, 26, 29, 30, 31, 32, 33, 36

Dorminey v. Montgomery, 232 Ala. 47, 166 So.

UMituamudikin wae ote wonue Geen abeieionewan eeu 30

351324—55——1 ww

Cases—Continued Page

Doughty v. Phila. Rapid Transit Co., 321 Pa.

Bs I wide t bhatt edtdncceentnguene 30

Feres v. United States, 340 U.S. 135__ 19, 22, 23, 24, 29

Ferrier v. City of White Plains, 262 App. Div. 94,

28 N. Y. &. 24 318, 367 N. Y. 858........... 30, 31

Finfera v. Thomas, 119 F. 2d 28__.....-------- 35

Fisher v. City of Boston, 104 Mass. 87 - -------- 31

Georger, Admz. v. United States, 1949 U.S. Avia-

I ota ko creme eeaune 35

German Alliance Ins. Co. v. Home Water Co., 226

ted Sen ecuncnmen ep nanenits 25, 35

Goodwill Industries of El Paso v. United States,

a 19, 33

Indian Towing Co. et al. v. United States, No. 213,

Oct. T. 1954, 349 U. S. 902, No. 8, Oct. T.

§ 2 8 - 17, 18, 19, 20

Johnston v. District of Columbia, 118 U. S. 19_-- 34

Kelley v. Everglade District, 319 U.S. 415_~---- ‘ 16

Labor Board v. Jones & Laughlin Co., 331

Se eS RE a ee 27

Lauterbach v. United States, 95 F.Supp. 479 ---- 33

MceKain v. B. & O. R. Co., 65 W. Va. 233, 64

8 ea ar 2 ee 27

Marino v. United States, 84 F. Supp. 721- ~~~ --- 35

Matveychuk v. United States, 195 F. 2d 613,

certiorari denied, 344 U. S. 845__........-.--- 33

Mead v. City of New Haven, 40 Conn. 72-- ~~... - 24, 31

Morton v. United States, (C. A. D. C., June 9,

EE Se a 19, 33

National Mfg. Co. v. United States, 210 F. 2d

263, certiorari denied, 347 U. S. 967____.--~-- 19, 37

The Nez Perce Tribe of Indians v. United States,

95 C. Cls. 1, certiorari denied, 316 U.S. 686_- 24

Olson v. United States, 93 F. Supp. 150_.. ~~~ ~-- 33

Pennsylvania R. R. Co. v. United States, 124

nicl Ceti ne Cadena save meenens 22

Powell v. City of Nashville, 167 Tenn. 334, 69

OR 8 Rit ee i ane a aon 30

Rhodes v. Kansas City, 167 Kan. 719, 208 P

ER Rah it SO a ea RES ESN 24, 31

Roberson v. District of Columbia, 86 A. 2d 536_-.-. 30

Cases—Continued

Schmidt v. United States, 198 F. 2d 32, certiorari

ee ee eee 19, 33

Seymoure v. Director General of Railroads, 290

__ecteseie nl ale ened 9 ia ap 27-28

Sigmon v. United States, 110 F. Supp. 906______ 19

Smart v. United States, 207 F. 2d 841____._._ __- 33

Turner v. United States, 248 U.S. 354___.._____ 25

United States v. Brown, 348 U.S.110__________ 24

United States v. Causby, yk Se 27

United States v. Gilman, 347 U.S. 507____..._ __ 24

United States v. Gray, 199 F. 2d 239___..___ | 34

Wolff v. District of Columbia, 196 U.S. 152____- 24

Young v. State of New York, 278 App. Div. 997,

105 N. Y. S. 2d 657, affirmed, 304 N. Y. 677,

Ra ai a ak easel 24, 31

Statutes:

Civil Aeronautics Act of 1938, 52 Stat. 973, 49

ek SRS Caan eee 5

nn 27

4 EE eee 26

es 5,6

ee 7

oe ee 26

a 7

2. (V6 ria Bae 7

ne ne ce imese 26

Federal Tort Claims Act (60 Stat. 842, 62 id.

869, 933, 982 et seq., 28 U.S. C. 1346, 1271

et seq.):

if § eS 5 | ee 3, 17, 18, 22, 52a

fee” lhe 3

2s 2 Se ae 18, 22, 52a

28 U.S. C. 2680 (a).....-.... 2, 21, 23, 30, 35, 53a

are we Ss A OD, wc mccccnweccenccen 37, 53a

Virginia Code, 1942:

tacit Siccnsaleicd 4

Miscellaneous:

CAA Staff Study: Washington Air Traffic Fore-

cast (Nov. 1950):

Page

Miscellaneous—Continued Page

CAA Statistical Handbook on Civil Aviation

(G. P. O., 1953):

DS, Mi anbeneeuniinestdankgeredieenakennenn 11

5 a ee See ee tee ree ll

Code of Federal Regulations:

Ale ee ta ctnuanesunsawnnend 7, 26

a a 26

14 C. F. R. 1949 Ed., Part 60__-.......-.-. 5

We, Be Sec ccnnancdedcassveseus 7

14 C. F. R. § 60.10_.--- sane ie sr ares whats 7

toe & eo. fe 7

is ee) ee 7

RAs 2 i tanwannsieddentena same 7

Be ee ete saccatkceukcnesnosen 26

E. Duval, The Enforcement of Safety Regulations

by the CAA, 35 Calif. L. Rev. 280 (1947)_.--- 7

Federal Register:

14 Fed. Reg. p. 3328, § 26.50-2_.......... 26

14 Fed. Reg. pp. 3335-3336, § 26.50-

OE Oe ED), o cccccesanasiatenaeseusens 7

14 Fed. Reg. pp. 3335-3349, §§ 26.50-61 to

og OR a

14 Fed. Reg. p. 3341, § 26.50-65...._.__.-

14 Fed. Reg. p. 3344, § 26.50-66 (b) (1)----

14 Fed. Reg. p 6250, § 570.55 (c).-.-----

Hearings before the Subcommittee of the Committee

on Appropriations, H. of Reps., 80th Cong.,

2d Sess., on the Dept. of Commerce Appropria-

tion Bill for 1949, pp. 223-227-.-..--------- 7

Hearings before the Subcommittee of the Committee

on Appropriations, U. S. Sen., 80th Cong.,

Ist Sess., on H. R. 3311, pp. 971, 975-976-_-. 7

H. R. 5299, sec. 303 (7), 77th Cong., Ist Sess... - 36

Memorandum for the Use of the Committee on

the Judiciary, H. of Rep., 77th Cong., 2d Sess.,

Explanatory of Committee Print of H. R. 5373

eS Ee? i |

SS ES See 37

S. 2690, sec. 303 (7), 76th Cong., Ist Sess_-..._-. 36

S. Rep. No. 343, 80th Cong., Ist Sess., p. 6..--- 7

S. Rep. No. 435, 81st Cong., Ist Sess., p. 7...-- 7

a ee

Sena,

Guthe Supreme Court of the United States

OctoBer TeRM, 1955

No.

Unirep STaTEs OF AMERICA, PETITIONER

Union Trust Company, Er aL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF CO-

LUMBIA CIRCUIT

The Solicitor General, on behalf of the United

States, prays that a writ of certiorari issue to

review the judgment entered in these eases on

February 8, 1955, by the United States Court of

Appeals for the District of Columbia Circuit.

OPINIONS BELOW

The District Court opinion (IR. 36-46)' is

reported at 113 F. Supp. 80. The opinion of the

Court of Appeals (App. A, infra, pp. la-tla) is

reported at 221 F. 2d 62.

‘Record references are indicated as follows: the roman

numeral refers to the volume of the Joint Appendix in

the Court of Appeals; the arabic number refers to the

page of that volume. The letter “A” affixed to each page

number of the Joint Appendix is omitted.

(1)

JURISDICTION

The judgment of the Court of Appeals was en-

tered on February 8, 1955 (App. A, infra, pp. 42a-

44a). Following the entry of orders enlarging

their time to do so (id., pp. 44a-46a), the United

States filed a timely petition for rehearing in

banc, and respondents filed a petition for rehear-

ing tn bane or by the original division. Both peti-

tions for rehearing in banc were denied on April

15, 1955 (id., pp. 46a-48a) ; respondents’ petition

for rehearing by the division was denied on May 11,

1955 (id., pp. 48a-49a). On July 9, 1955, Mr.

Justice Frankfurter extended the time of the

United States for filing a petition for a writ of cer-

tiorari to and including Angust 9, 1955 (id., p. 51a).

The jurisdiction of this Court is invo’xed under 28

U.S. C. 1254 (1).

QUESTIONS PRESENTED

1. Whether the United States is subject to

liability under the Federal Tort Claims Act for

the negligence of its control tower operators in

regulating air traffic.

2. Whether the discretionary function excep-

tion of that Act (28 U. 8. C. 2680 (a)) bars claims

arising from the discretionary acts of federal em-

ployees at ‘‘the operational level’’ as weil as acts

at the poliey-forming level.’

* See also infra, fn, 17 at pp. 15-16, and fn. 41 at p. 37.

STATUTES INVOLVED

The pertinent provisions of the Federal Tort

Claims Act are set forth in Appendix B, infra,

pp. 52a-53a.

STATEMENT

a. The litigation—On November 1, 1949, an

Eastern Air Lines DC-4, with 51 passengers and

a crew of 4, collided in mid-air with a P-38

military type plane, owned by the Bolivian Gov-

ernment, while both craft were coming in for a

landing at the Washington National Airport.

All of those aboard the DC-4 were killed.

Bridoux, a Bolivian Air Force officer, who was

alone in the P-38, survived. As a result of the

accident, over 100 suits were brought in various

jurisdictions against Eastern, against Bridoux,

and against the United States. The complain-

ants asserted that the pilot and co-pilot of East-

ern’s plane were negligent, that Bridoux was

negligent, and that Civil Aeronautics Administra-

tion employees in the Airport’s control tower

were negligent in regulating the air traffic at

the Airport (IR. 22-24). The actions against the

United States, more than 60 in number, were

brought under the Federal Tort Claims Act (28

U.S. C. 1346 (b), 2671-2680).

To avoid multiplicity, four actions brought by

the executors of Mr. and Mrs. Ralph F. Miller, de-

ceased passengers on the DC-4, were chosen as

test cases—two of the actions were against East-

ern and Bridoux as joint defendants, and two

Poses, om we * ray ar emer om es BOAO AP POE PE EES Fe POM DD FI

were against the United States.* The cases were

consolidated for trial. Those against Eastern

and Bridoux were tried to a jury; simultaneously,

those against the United States were tried to the

court alone. The jury found Eastern negligent

and responsible for the accident, but Bridoux

not; it awarded $50,000 for the death of Ralph

F. Miller and $15,000 for the death of his wife

(I R. 55-57). The trial judge found the Govy-

ernment negligent in, and subject to liability for,

the manner in which it had regulated air com-

merce at the Airport; that negligence, he found,

“concurred with the negligence of Eastern’’ in

causing the accident (I R. 51, 45). Like the

jury, he found that the accident occurred in the

District of Columbia and he awarded damages

against the United States in the same amounts

(I R. 52).

On appeal, the judgment against the United

States relating to Mrs. Miller was affirmed, but

the judgment relating to Mr. Miller was reduced

to $15,000 to accord with the Virginia statute

* Virtually all of the claimants stipulated with the defend-

ants that the final determinations in these four actions shall

bind all on the question (a) of the liability of the defendants,

and (b) of whether the Wrongful Death Statute of Virginia

or of the District of Columbia is applicable. One of the

issues litigated was whether the collision occurred over land

in Virginia or over the Potomac River in the District of

Columbia, Under the Virginia death statute then applica-

ble, recoveries were limited to $15,000 (Va. Code, 1942,

§ 5787) ; there was no limitation under the District’s statute.

hag :

and, as so modified, was affirmed. This petition

relates only to the two cases brought against the

United States.

b. Federal regulation of air traffic—Civil avia-

tion in all its phases has been made the subject of

intensive regulation by the Federal Government

under the Civil Aeronauties Act of 1938, 52 Stat.

973, 49 U. S. C. 401 et seq., in order to promote

the development and safety of air commerce.

Pursuant to that Act, regulations have been

promulgated which cover such subjects as mini-

mum standards for the construction, performance,

and maintenance of aircraft; qualifications for

the issuance of certificates to airmen, aircraft and

air carriers; the operation of the business of air

transportation, ete. All air traffic is governed by

regulations promulgated by the Civil Aeronauties

Board (CAB). These regulations and rules are

administered by the Civil Aeronautics Admin-

istration (CAA). CAA is empowered to establish

and operate air navigation facilities wherever

necessary, and is authorized ‘to provide neces-

sary facilities and personnel for the regula-

tion and protection of air traffic” (49 U. S. C.

452 [emphasis added]). Under this and other

‘The judgments against Eastern were reversed and its

cases were remanded for a new trial because of the erroneous

submission of an issue to the jury.

* Air traffic rules (“rules of the road”) applicable in 1949,

When the accident here involved occurred. are set out at 14

C.F. R., 1949 Ed., Pt. 60,

ile dante in PAR a ii lla MP cep li ka nash, CEG itd ci AS

Pi Se GiNinaialia 1K altel do

ee eee ee |

authority, CAA has established a vast and in-

tricate network of civil airways (‘‘air highways”)

and of air navigation facilities, which includes

hundreds of aeronautic communication systems,

radio range stations, beacons, radar installations,

ete., analogous to, but much more complex than,

the network of navigational aids maintained by

the Coast Guard for mariners.

Among the most important facilities maintained

by CAA for the regulation and protection of air

commerce are airport control towers. The towers

regulate and control air traffic operating in the

vicinity of airports. Almost all control towers

in the United States, regardless of the ownership

of the particular airport, are maintained by the

CAA and are operated by CAA employees known

as air traffic controllers. They are certificated

*The congestion of air traffic at the busier air terminals

presented a constantly increasing problem. Before enact-

ment of the Civil Aeronautics Act of 1938, control towers were

erected and operated by cities at municipal airports. Soon

after 1938, CAA began to take over, construct, and operate

the towers. See 49 U.S.C. 452. In 1948, it operated some

100 towers. In 1949, when the instant accident occurred, it

Was operating 163 of the nation’s 200 towers. The number

has increased since then.

The so-called “private” towers are operated under author-

ity lelegated by CAA and under rigid CAA supervision

(see ‘nfra, pp. 26-28). They are, for the most part, located at

private airfields which have little or no public traffic. In

determining whether funds should be appropriated to CAA

to operate towers at airfields which have public air traffic,

the Appropriations Committees of Congress, in cooperation

with CAA, apply a point system to measure the density of

the public traflic. When the airfield attains a stated mini-

by CAA after a training course followed by

written and physical examinations, and periodic

reexaminations (14 C. F. R., Pt. 26). Their fune-

tions are analogous to those of a traffic policeman

at a busy highway intersection, although more

complicated because of the three dimensional

aspect of flight. (II R. 273-4, IV R. 862; VII

R. 1353).

When operating in the vicinity of an airport,

aircraft are required to maintain radio or visual

contact with the tower so as to receive any in-

structions which may be issued. 14 C. F. R.,

§ 60.18 (b). When an affirmative instruction is

issued by the tower, it must be obeyed.’ Viola-

tion of an affirmative tower instruction may re-

sult in penalties such as fines, revocation or sus-

pension of a pilot’s certificate, ete.* On the other

hand, certain of the functions of the tower are

merely informational, advisory or permissive.”

mum of traffic points, funds ordinarily are appropriated.

See, e. g., Hearings before the Subcommittee of the Commit-

tee on Appropriations, U. S. Sen., 80th Cong., Ist Sess., on

H.R. 3311, pp. 971, 975-6 ; Hearings before the Subcommittee

of the Committee on A ppropriations, H. of Reps., 80th Cong.,

2d Sess., on the Dept. of Commerce A ppropriation Bill for

1949, pp. 223-7; S. Rep. No. 343, 80th Cong., Ist Sess., p. 6;

S. Rep. No. 435, 81st Cong., Ist Sess., p. 7.

"14 C. F. R. §§ 60.19, 60.21, 60.10. Only in emergency

situations may the pilot deviate from an affirmative in-

struction of the tower or from prescribed Air Traffic

Rules. 14.0. F. R. g§ 60.2, 60.21.

*See 49 U. S. C. 559, 560 (a) (5), 621; see also, E.

Duval, The Enforcement of Safety Regulations by the

CAA, 35 Calif. L. Rev. 280 (1947).

*See 14 Fed. Reg. pp. 3335-3349, $$ 26.50-61 to 26.50-70,

Thus, the tower will advise pilots of wind and

weather data, field conditions, traffic information;

it also issues various clearances, e. g., to taxi,

to take-off, or to land. A landing clearance, un-

like an affirmative tower command (such as to

ascend or to turn), is only permissive in nature;

it is intended as an authority to the pilot to pro-

ceed with a landing in such manner as his judg-

ment dictates, consistent with the safe manage-

ment of his plane (X R. 2030, 2036, 2038-2040;

14 Fed. Reg. p. 3341, § 26.50-65). The Regula-

tions provide that it is the pilot’s direct responsi-

bility to avoid collision with other aircraft, that

the information and clearances given by the tower

are intended only as an aid to the pilot, not as a

substitute for that responsibility.” The Regula-

tions also provide that the tower shall give such

information to pilots as “in the judgment’’ of

the air traffic controller is necessary for safety

(14 Fed. Reg. p. 3344, § 26.50-66 (b) (1)).

A plane approaching Washington for a land-

ing usually contacts the airport control tower

when it is 15 to 20 miles away (VI R. 1260, 1296)

and until it lands it remains in contact with the

tower. In this initial call, the pilot may request

landing instructions. The air traffie controller

will respond by specifying the runway to be

1014 Fed. Reg. p. 3344, § 26.50-66; idid., pp. 3335-6,

§ 26.50-61 (b) (1). The text refers to flight by visual

reference (VFR), which is the situation present here.

Other regulations apply to instrument flight (IFR).

a hUee 6 Oe 66 ate, ft 3 goo ah Uh ok Oe me

used, advising the pilot of wind and weather

conditions, giving such traffic information as is

deemed pertinent, and giving a clearance to enter

the traffic pattern, as distinguished from a clear-

ance to land (I R. 188-9, VI R. 1260-1, VII R.

1346). The traffic pattern is the prescribed path

or flow of traffic around the immediate vicinity

of the airport (see Pltf’s Ex. 7, XI R. 2128A-3).”

A plane may not ordinarily enter the traffic pat-

tern until it receives a tower clearance, and, once

within the pattern, it may not land until the

tower gives a specific clearance to land (X R.

2036, 2029-2030).

After the plane is within the pattern, its pilot

will again contact the tower and request a clearance

to land. If his is the first aircraft in the pat-

tern, he may then be cleared to land. But if

* The path of a plane landing on Runway 3 (which heads

in a generally northerly direction and which is the runway

here involved) is prescribed as follows (see Pltf’s Ex. 7, XI

R. 2128A-3; X R. 2108; 14 Fed. Reg. p. 6250, § 570.55 (c)) :

the plane enters the traflic pattern at a point northwest of the

airport and proceeds in a southerly direction to a point south

of Alexandria (this is called the downwind leq), then it turns

and proceeds east until over the Potomac River (this easterly

flight is called the base leg), then it turns north and, after a

slight S-turn, lines up with and descends to Runway 3 for

landing (this is called the final approach). However, once

the plane receives a clearance to land, the pilot may deviate

from this pattern if he chooses because a landing clearance,

being permissive in nature, confers authority on the pilot to

proceed with a landing in such manner as his judgment

dictates (X R. 2030-9). Accordingly, once a plane is cleared

to land, tower personnel do not know precisely what path the

pilot will follow.

there are other aircraft already in the pattern

also awaiting landing clearance, the tower will

assign a number to him indicating his sequence

to land—but the assignment of a number does

not itself constitute a clearance to land (VIII

R. 1664); the plane is expected to continue fly-

ing around the airport in the pattern until its

number is reached at which time the tower gives

a specific clearance to land (X R. 2036).

ce. The facts—The following is an abbreviated

summary of the facts as found by the district

court and revealed by the evidence: Eastern’s

DCH, 15 miles out of Washington en route from

New York, contacted the tower while it was over

Beltsville, Md., and at 11:38 A. M. received a

clearance to enter the traffic pattern for land-

ing on Runway 3 (I R. 21-2, 49-50). One minute

before, Bridoux had taken off in the P-38 (a

used plane recently purchased by the Bolivian

Government) for a test flight (I R. 37).

Nine or ten minutes later, at 11:46-11:47

A. M., while both planes were south of the field on

final approach for landing on Runway 3, and at

an altitude of about 300 feet, the two planes col-

lided (I R. 21, 49). Despite the extensive record

made at the trial, the district court’s findings and

the opinion are entirely silent as to what occurred

during this crucial nine or ten minutes. Indeed,

apart from its conclusionary findings of negli-

gence, the court made few findings beyond the

facts which the parties had stipulated before trial.

This gap in the findings can be filled only by ref-

erence to the testimony:

Glenn D. Tigner, one of the seven air traffic con-

trollers on duty in the tower,” testified that when

the DC requested landing instructions he

cleared it to enter the traffic pattern and advised

the pilot to contact him at a point closer to the

field (VI R. 1277-8, VII R. 1346). A little later,

when the DC+ was still north of the field, it again

contacted the tower, and Tigner cleared it to land

on Runway 3 (VI R. 1278-9).

Shortly afterward, Tigner observed the P-38

at a high altitude, circling Alexandria, about 7

miles south of the airport (VI R. 1280, XT R.

2160-4). It was not flying in the traffic pattern

(IX R. 1862-4, 1940). Tigner was then talking

to another plane (VII R. 1561). An associate

in the tower advised him the P-38 was requesting

* Because of the great amount of traffic at and near the

airport, the controllers, although having specific assign-

ments, of necessity work together as a team (I R. 207-8).

The Washington National Airport, which is the only civil

airport owned and operated by the United States, is the

third or fourth busiest in the country. In 1949, there were

in excess of 165,000 landings or take-offs, or an average

of 450 per day, at the airport. CAA Statistical Hand-

book on Civil Aviation, p. 14, 21 (G. P. O., 1953). We are

informed by CAA that during the busiest periods there

have been 59 landings or take-offs per hour at the airport,

and it is to be noted that it takes almost a full minute

for a plane to move onto a runway, to a-celerate and to

take-off, and about the same time for a landing plane from

the time it touches the ground until it leaves the runway.

CAA Staff Study: Washington Air Traffic Forecast, pp.

41, 45 (Nov. 1950).

Gre ewe e+ i ee. nina: hetero sie ee wet creme ee ee er re oe at ae renee ah

tie = er ee

landing instructions (VI R. 1280-1). He ealled

the P-38, but received no acknowledgment (ibid.,

VIII R. 1613-4). He called again and, this time,

on receiving an answer, he cleared the P-38 to

enter the left traffic pattern for Runway 3, and

instructed the pilot to report when he was on

his downwind leg, west of the airport (VI R.

1281, 1303-4). The message was acknowledged.

The P-38 was then 5 miles below the field, heading

northwest, still circling toward the left (VII R.

1363).

When Tigner next saw the P-38, it was about

five miles southwest of the airport at an altitude

of approximately 4,000 feet, but now heading

northeasterly with its gear down, and it was in a

steep and rapid descent (VI R. 1281-2, XI

2160-5)." At about that time, the tower alerted

Eastern’s DC-4 to the presence of the P-38,

and gave its position (I R. 89-92, 119-122).

Observing the continued descent of the P-38,

Tigner then called it and directed a 360 degree

turn (so as to provide adequate space between

the P-38 and the DC-4). He said, “Bolivian

927, make a 360 to your left. You are No. 2

* It could not then be determined that the P-38 was mak-

ing a straight-in approach for landing, because the clearance

given moments before fo enter the traffic pattern would per-

mit the P-38 to descend from 4,000 feet to 1,200 feet (which

is the minimum altifude of the traffic pattern) while heading

toward the airport (IX R. 1824, 1940-1). The fact that a

plane’s gear or flaps are down while flying in the pattern is

neither unusual nor significant (VII R. 1511, IX R. 1946).

PENA NER I mp pee eee -

to land. Traffic is an Eastern DC-4, turning

final ahead and below you” (VI R. 1282, 1304-5,

1310). But the message was not acknowledged,

nor did the plane comply with the instruction

(VI R. 1282-3). Thinking that perhaps the

Bolivian pilot did not know the meaning of the

phrase “*make a 360,” Tigner then called, “Bo-

livian 927, turn left, turn left. You are No. 2

to land, following an Eastern DC—4 turning final

ahead and below you” (VI R. 1283, 1308). But

again there was neither an acknowledgment nor

compliance (tbid.).

During these communications the DC—4 was on

its base leg, roughly at a right angle to Runy yay

3, turning all the time from base leg into final

approach (VI R. 1283). When Tigner saw that

the P-38 was not complying with his instructions,

he called to the DC-4, ‘‘Eastern 537, make an im-

mediate left turn. ‘Traffic is P-38 above and

* An instruction from the tower that a plane is No. 2 to

land does not constitute a clearance to land. It merely indi-

cates the plane’s number in the traflic sequence. See pp.

9-10, supra,

* After receiving its landing clearance, the DC-4 deviated

from the prescribed landing pattern (see fn. 11, p. 9,

supra). Instead of proceeding southward on downwind leg

until below Alexandria, the DC-4 made a short approach,

turning eastward onto the base leg while still north of

Alexandria. There is no testimony to show that Eastern’s

pilots took any action to avoid the collision until the last

moment, although from the description of their path of flight

it seems clear that the P-38 could have been seen by the DC-+4

pilots while on downwind and base legs.

351324—55—_2

PN PST TENE ET TEI ST EE EY ERE RTL

behind you’”’ (VI R. 1284). The DC, which

had gone only a quarter of a mile while actually

on final approach (VI R. 1302), started to level

off at once and began a slight left turn when

the P-88 overtook it from above and behind, and

struck it (VI R. 1284). The DC+4 broke in two;

the forward part fell in the Potomac River, the

after part on the Virginia shore.

Bridoux, the Bolivian pilot, gave a different

version. He stated that shortly after his take-off

one of his two engines gave trouble (II R. 397-

402, III R. 491), that he reported this to the

tower and requested landing instructions (II R.

406-7), that the tower responded, ‘‘Land 2 on

Runway 3” (II R. 411). He understood this to

mean that there was another plane ahead of him,

but (mistakenly) he also understood this to con-

stitute a clearance to land rather than merely a

clearance to enter the traffic pattern (II R. 416-7,

III R. 613-4). He said that while flying down-

wind he observed a plane (not the DC-4) making

an approach for landing and assumed that that

was the plane in the sequence ahead of him (IT R.

425); he did not check with the tower to verify

this. He testified to flying the prescribed landing

pattern and that, while flying north, he again

called the tower and advised that he was on final

approach (II R. 481-3). He said the tower re-

sponded, ‘‘ Bolivian P-38, prepare to land on Run-

way 3” (id.). He acknowledged, then put his

flaps down, reduced his speed and began an S-turn

rE ——

TERS TA ey PONE SONY AO mes ae Ry

to line up with the runway (II R. 431-7). He

then heard over the radio, “Clear to the left, clear

to the left” (II R. 438). He thought the instrue-

tion was for someone on the ground (id.).* He

did not turn left or take any other action. The

collision occurred two or three seconds later

(II R. 438-9).

d. The decisions below.—The district judge

found that the collision occurred over the District

of Columbia, that weather conditions were ex-

cellent, and that both planes were visible to the

tower personnel who knew that the planes were

on converging paths and had adequate oppor-

tunity to warn them (I R. 22, 50). He found

that the air traffic controllers were negligent in

clearing both planes for the same runway at ap-

proximately the same time, and in failing to warn

and keep each plane apprised of the other’s activ-

ities.” He found that this negligence “concurred

** Radio transmissions between the tower and the P-38

were on a military frequency. Different frequencies are

used for messages between the tower and craft on the

ground, and between the tower and commercial planes.

* Specifically, his finding was that the tower personnel

were negligent in that, “having in mind the respective

positions of said planes in relation to each other and their

speed of approach and descent: (a) they failed to issue a

timely warning to the Eastern plane concerning the P-38

being on final approach; (b) they failed to warn the P-38

that the Eastern plane was on final approach; (c) they

cleared both planes for the same runway at approximately

the same time; and (d) they failed to keep both planes

advised of the activities of the other” (I R. 50-1 [emphasis

added]). Although the trial judge based his ultimate

— 4h a2 x Sd

fe STS A A PRE REL FENNEL PPS LN OR IS PN NET PAE ATONE OE

ee e

with the negligence of Eastern’? in causing the

accident (I R. 51, 45). Rejecting the Govern-

ment’s defense that claims of this type, based on

regulatory and governmental acts, are not cog-

nizable under the Tort Claims Act, he held that,

when the Government assumed the responsibility

of regulating air commerce and of regulating the

flow of air traffic at a public airport, it also

assumed a duty to protect the public from the

hazards of such regulation, and that violation

of that duty creates private rights actionable un-

der the statute (I R. 44).

The Court of Appeals affirmed, but modified

the award of damages. Acknowledging that the

principal question is whether the United States is

liable under the Act for negligence of its control

tower employees in regulating air traffic (App. A,

infra, p. 23a), the court held that the regulatory

activity involved is not uniquely governmental,

first, because there still are a number of control

towers which have not been taken over by CAA,

and second, because a private individual could

establish an airport with a control tower, hence

‘‘when the United States entered the _busi-

ness * * * it assumed a role which might be

and was assumed by private interests” (id., p. 26a).

findings of negligence on the italicized preliminary state-

ment of fact, he never resolved the substantial conflict of

evidence on those points nor made any findings concerning

them. We believe his failure to do so constituted reversible

error. See e. g., Kelley v. Everglade District, 319 U. 8.

415, 420, 422; Dalehite v. United States, 346 U.S. 15, 24, fn. 8.

The court held that the discretionary function

exception is not applicable because, it ruled, that

section does not apply to discretionary acts ‘‘at

the operational level’’; the Dalehite opinion (346

U. 8. 15), it said, indicates that the exception

applies only to decisions ‘‘made at a_policy-

forming level” (App. A, infra, p. 33a). While

characterizing the evidence of tower negligence in

clearing both planes to land as “meager” and

‘only slight,’’ it concluded there was adequate

proof to support the findings (id., p. 38a).

Finally, with one judge dissenting on this point,

the court held that the Government’s liability must

be measured by the law of Virginia, rather than by

District of Columbia law, because the Tort Claims

Act, in express terms (28 U. 8. C. 1346 (b)), re-

quires application of the law of the place where

the negligent “fact or omission occurred”; that

the negligent acts occurred in the tower in Vir-

ginia; and that application of Virginia law re-

quired modification of the judgment awarding

390,000 for the death of Ralph F. Miller by re-

duction to $15,000 (see fn. 3, supra, p. 4).

REASONS FOR GRANTING THE WRIT

1, This case presents questions paralleling

those now before this Court in Indian Towing

Company v. United States, No. 213, Oct. T. 1954,

where, following an equal division (349 U. S.

902), a petition for rehearing was granted on May

6, 1955, and reargument was scheduled for this

Term, No. 8 (349 U. S. 926)." In both cases, the

basic question is whether the United States is

answerable under the Tort Claims Act for an

allegedly negligent failure to accomplish a

uniquely governmental objective—protecting and

safeguarding those engaged in commerce. Put

another way, the issues relate to the nature and

scope of the so-called ‘‘governmental function’’

exclusion from the Act’s coverage which was

ruled on in Dalehite v. United States, 346 U. S.

15. There, the Court held that liability may not

be imposed on the United States for damages re-

sulting from the negligent performance of gov-

ernmental duties. ‘‘Congress,’’ the Court ob-

served, ‘‘exercised care to protect the Govern-

ment from claims, however negligently caused,

that affected the governmental functions” (346

U.S. at 32).

This governmental function exclusion, which

constitutes one of the fundamental limitations

upon the reach of the Act, has two textual sup-

ports, one marked out by Sections 2674 and 1346

(b) (App. B, infra, p. 52a) which limit the lia-

bility of the United States to that of a “private”

person in “like circumstances,” and the other,

based on Section 2680 (a) (App. B, infra, p. 58a),

which exempts claims arising from the perform-

* The petition for rehearing (at pp. 2-3) filed in Jndian

Towing made specific reference to the pendency of the in-

stant cases to illustrate the importance of the question

there involved.

ance of a “‘discretionary function.” While not

mutually exclusive, each branch gives content to

the exclusion and protects the United States

from claims affecting activities dominantly gov-

ernmental in nature.”

In both Indian Towing and the present case,

the claims rest on the misfunctioning of a

warning system maintained by the Government

as part of its public responsibility to promote

safety in commerce, a responsibility .. ich, we

point out below, has no true private analogy and

which, when defaulted, does not give rise to

analogous private liability “under like cireum-

stances.” In Indian Towing, the petitioners’ tug

went aground allegedly because the Coast Guard

failed to maintain a navigational aid (an un-

watched lighthouse) erected and operated by the

United States in keeping with its public duty

to warn mariners of water hazards, so as to

* Thus, See. 2674 has been held to bar claims arising out

of negligent fire fighting (Dalehite v. United States, 346

U.S. 15, 42-44); negligent weather forecasting (National

Mfg. Co. v. United States, 210 F. 2d 263, 277 (C. A. 8),

certiorari denied, 347 U. S. 967) ; negligent maintenance of a

prison (Sigmon v. United States, 110 F. Supp. 906 (W. D.

Va.)); and see Keres v. United States, 340 U. S. 135, 141-2,

Sec. 2680 (a) has been held to bar claims arising out of negli-

gent failure to prevent a theft (Goodwill Industries of El

Paso v. United States, 218 F, 2d 270, 272 (C. A. 5)); negli-

gent supervision of a prisoner (Morton vy. United States,

» A.D. C., June 9, 1955) ; improper conduct of an SEC

investigation (Schmidt vy. United States, 198 F. 2d 32

(C. A. 7), certiorari denied, 344 U.S. 896. See, also, infra,

p. 33,

SED ee Ae ogy OREO!

promote safety at sea. In this case, respondents

suffered detriment allegedly because of the mis-

functioning of a navigational aid (a control

tower) erected and operated by the United States

in keeping with its public duty to warn pilots of

conditions around an airport, also for the end of

promoting safety in commerce.

In Indian Towing, the Fifth Cireuit held that

a claim of this kind—arising from the failure of

the Government to fulfill its public navigational

responsibilities—is not cognizable under the Tort

Claims Act. Here, the District of Columbia Cir-

cuit held that it is. The two cases are in sub-

stantial conflict, and if the Court should affirm

in Indian Towing this case should be before the

Court so that the ultimate decision herein would

conform to the ruling there made. Moreover, a

reversal in Jndian Towing will not necessarily be

dispositive of the present case because here there

is the additional, highly significant, factor that

it is not merely the function of the control tower

to warn aiveraft, but it is also the responsibility

of the air traflic controllers to regulate and

control aireraft in flight. Both courts below, aec-

knowledging that the accident occurred while the

tower was in the act of regulating air traffie,

held that a failure to use due care in such regulation

creates private rights under the Tort Claims Act.

Indian Towing does not involve this important

question of whether the United States is answer-

able in tort for negligent regulation. See infra,

pp. 22-28, 32-37. Similarly, this case, unlike

Indian Towing, poses the problem of whether the

“discretionary function or duty” to which Section

2680 (a) refers is confined to high level policy

determinations, or covers acts of publie judg-

ment without regard to the echelon of the em-

ployee exercising the discretion. See infra,

pp. 30-35.

These issues are of far-reaching importance, as

the Court has already recognized by granting

review and ordering reargument in Indian Tow-

img. This is a test case controlling scores of

other pending suits. Supra, p. 3. But even

more, the principles announced below affect di-

rectly all “operational level’’ regulation of air

commerce under the Civil Aeronautics Act and,

indirectly but no less immediately, almost all reg-

ulatory and law enforcement activity of the Gov-

ernment. We have urged throughout the country,

with some success (see fn. 19), that claims based

upon the improper functioning of activities such

as those here and in Indian Towing—character-

istically governmental in nature—are excluded

from the coverage of the Tort Claims Act under

Sections 2674 and 2680 (a).” The decision below

* Typical of these cases is the extensive litigation arising

out of an explosion which occurred at South Amboy, N. J.,

in 1950, when lighters were being loaded with explosives

manufactured and transported by private firms for sale to a

foreign country. 31 persons were killed; more than 12,000

persons asserted property damage claims. The gravamen of

the complaints against the United States is that a Coast

flatly rejects that thesis, despite the teaching of

the Dalehite decision, and thus leaves it to this

Court to furnish the further guidance which is

now all the more necessary.

2. (a) The first branch of the governmental

function exclusion (Sees. 2674 and 1346 (b))

specifies that the only liability assumed by the

United States is that which a ‘‘private individ-

ual”’ or a ‘‘private person” would have ‘‘under like

circumstances.” There can be no liability under

the Act if the claim cannot be analogized to one

which would give rise to private liability. Feres

v. United States, 340 U.S. 135, 141-142; Dalehite

v. United States, 346 U. S. 15, 42-44. Where, as

here, the essence of the claim is the failure to

perform, or the negligent performance of, a char-

acteristically public duty, no such analogy can

properly be drawn. If the gist of the claim is

loss suffered by reason of negligence of the

Weather Bureau in issuing erroneous warnings

concerning a hurricane, or carelessness of the FBI

in failing to recover stolen funds, or negligence

of the SEC in not preventing a stock fraud, there

can be no recovery under the Act because the

complaint would not meet ‘‘the test of allowable

claims,” which is, that there be private liability

Oe Se Oa ae a a ee ee ee ke me

Guardsman on the scene negligently failed to discover viola-

tions of, and to enforce compliance with, safety regulations.

The district court has held the claim cognizable under the

Act. Pennsylvania R. R. Co. v. United States, 124 F. Supp.

52 (D.N.J.). The cases are awaiting trial.

wee

“under like circumstances” (Feres, supra, 340

U.S. at 141). The claims would be based upon

the failure to perform functions or to achieve

objectives peculiarly and historically within the

province of government, and there can be no

private counterpart in such circumstances.”

Where this kind of claim is presented, it is

unnecessary to look beyond Section 2674 to find

that recovery is barred, even though the chal-

lenged conduct may also be within the classical

meaning of the words ‘‘discretionary function” as

used in Section 2680 (a) (infra, pp. 30-37). This

Court has again and again stressed that the Tort

Claims Act permits suit only on “recognized

"Cf. fn. 19, supra, p. 19. As our brief in /ndian Towing

points out, we do not, of course, contend that all conduct

tending to promote a uniquely governmental objective is

excluded from the Act’s coverage. The exclusion does apply,

however, when the essence of the particular claim is the negli-

gent failure to attain that objective. We adhere to the dis-

tinction drawn by the Congressional committees explaining

the exclusion of claims based on regulatory activities (infra,

pp- 35-37). Thus, a claimant is not barred from recovery in

the routine case of a collision with a CAA truck carrying

CAA’s mail. The gravamen of such a complaint would not

be that the particular agency negligently performed its

uniquely governmental function (regulation of air com-

merce). So far as that complainant is concerned, whether or

not the agency attained its objective (proper regulation of

commerce) would be wholly irrelevant to his claim. He is

damaged by the CAA’s negligent performance of the inter-

mediate step of driving a truck (an activity which has its

private parallel). The Tort Claims Act was intended to

permit such a suit, but not where, as here, the gist of the claim

is alleged negligence in the performance of the governmental

activity itself (regulation of air commerce),

causes of action’’ and does not “‘visit the Govern-

ment with novel and unprecedented liabilities’’

(Feres v. United States, 340 U. 8. 135, 142; Dale-

hite v. United States, 346 U. S. 15, 43-44; United

States v. Brown, 348 U. S. 110, 112-113). The

Act permits recovery only where there is ‘‘an

established type of liability’? (United States v.

Gilman, 347 U. S. 507, 509); it does not create

new rights (Dalehite, 346 U. S. at 43; Feres,

340 U. S. at 142). And there is no liability

in American law for the failure of a government

to fulfill efficiently its uniquely publie responsi-

bilities. It is almost an universal rule in this

country that, absent specific legislative mandate,

the negligent performance of, or the failure to

perform, governmental duties relating to the pro-

tection, safety, and health of the community give

rise to no private actionable claim.” See also

infra, pp. 30-31. More than 30 years ago, this

Court, speaking through Mr. Justice Brandeis,

held that the fundamental obstacle to recovery in

such situations is not the immunity of the

” KE. g., Wolff v. District of Columbia, 196 U. S. 152, 157

(failure to lig. streets); Mead v. City of New Haven, 40

Conn. 72 (negligent inspection of steam boiler) ; Rhodes v.

Kansas City, 167 Kan, 719, 208 P. 2d 275 (negligent fire fight-

ing); Young v. State of New York, 278 App. Div. 997, 105

N. Y. S. 2d 657, aflirmed, 304 N. Y. 677, 107 N. EF. 2d 594

(negligent supervision of bridge scaffolding) ; Zhe Nez Perce

Tribe of Indians vy, United States, 95 C. Cis. 1, 9-11, certiorari

denied, 316 U. S. 686 (failure to prevent removal of gold

from land).

——— ah ti

sovereign to suit, but the lack of a substantive

right to recover damages resulting from the fail-

ure of the Government to perform its publie fune-

tions carefully, and that therefore, even when a

statute waives immunity, such a claim is not

actionable unless the act creates a new substantive

right. Turner v. United States, 248 U. 8. 304,

308; and see German Alliance Ins. Co. v. Home

Water Co., 226 U.S, 220, 227-8, 230-1,

(b) The court below sought to avoid the bar-

rier of Section 2674 by holding that the regulation

of air commerce by the United States does have a

proper private analogy. But we have already

shown the intensive supervision exercised by the

federal government over air commerce (supra,

pp. 5-10). The control tower is the nub of

CAA’s extensive network of regulation and con-

trol of air traffic. Its function is regulation in

the most direct manner provided under the Civil

Aeronautics Act. The directions which the air

traffic controller gives to aircraft carry the bind-

ing authority of law. His affirmative instructions

(as distinguished from clearances which are only

permissive in nature) must be obeyed; failure

or refusal to obey may result in penalties and

other sanctions (supra, p. 7). In that sense,

his oral directions are of the same legal quality as

the written regulations themselves. No private

person has this characteristically governmental

power of regulation and control.” In fact, any

unauthorized interference with air navigation by

a private individual is expressly forbidden and is

punishable by fine and imprisonment (49 U. 8S. C.

622 (c)).

In ruling that there is a private analogy to

CAA’s regulation of air commerce the court below

relies on the fact that there still are a number of

control towers which CAA has not yet taken over

for operation (see fn. 6, supra, pp. 6-7); it

then assumes that these towers “perform no gov-

ernmental function,’’ and further assumes that

the owners of such towers would be liable for

negligent operation (App. A, tnfra, p. 26a).

But such “private” towers cannot be analogized

to an attendant at a private parking lot the owner

of which would be liable for the attendant’s mis-

direction of traffic. The ‘‘private” towers can be

operated only by persons examined and certificated

by CAA,™ with equipment approved by CAA,®

and pursuant to procedures and techniques set

out in regulations promulgated by CAA.* Their

** Even the dissent in Dalehite agreed that when a govern-

ment “official exerts governmental authority in a manner

which legally binds one or many, he is acting in a way in

which no private person could,” and the governmental func-

tion exclusion applies. 346 U.S. at 59.

*See 49 U. S. C. 401 (6); éd. 560 (a) (2); and 14

C. F. R. Part 26..

* A certificated controller is prohibited from controlling

air traffic with facilities which CAA has determined to

be inadequate. 14 C. F. R. 26.31.

*° 14 C. F. R. 617.3; 14 Fed. Reg. p. 3328, $ 26.50-2.

commands must be obeyed just as in the case of CCA

towers. The primary reason why CAA does not

operate these towers itself is because the particu-

lar airports do not have sufficient public traffic

to warrant it. See fn. 6, supra, pp. 6-7. What

CAA has done in effect is to delegate its au-

thority in these circumstances to designated per-

sons to regulate air traffic. This does not alter

the dominantly governmental nature of the

activity for, essentially, these ‘“‘private” towers

are then an arm of CAA.” The “private” air

traffic controller who operates such a tower is

analogous to a special policeman who derives his

authority from the government and who, when

performing his public functions, has the same

privileges and immunities as a public official. See

Labor Board v. Jones & Laughlin Co., 331 U.S.

416, 429, 431. He acts in the dual capacity of

public officer and private employee; if he is neg-

ligent in his public duties, as distinguished from

acts performed as a private servant, his employer

would not be subject to liability. McKain v.

B. & O. R. Co., 65 W. Va. 233, 64 8S. E. 18; Sey-

* No private airport operator himself, as distinguished

from the CAA tower, has the power today to regulate and

control civil aircraft in air commerce, not even within the

designated control zone above and surrounding his airport,

for all navigable air space has been placed in the public

domain and is subject to exclusive federal control. 49

U.S. C. 180; ef. United States v. Causby, 328 U. S. 256;

and see supra, pp. 5-10.

moure Vv. Director General, 290 Fed. 291 (C. A,

D. C.).*

that the Section 2674 aspect of the governmental

function exclusion applies only when the activity

has no possible parallel whatsoever in private

affairs. Such a restrictive interpretation of the

exclusion goes far toward nullifyng the exemp-

tion, since there are few governmental activities

without some remote private counterpart. The

public police have equivalents in private police

or detective agencies, such as the railroad police;

certain of the services of the Weather Bureau are

duplicated by private forecasting organizations;

publie licensing of businesses or trades has an

analogy in the granting by large realty develop-

ments of concessions and conditional operating

permits; public sanitary inspections have similar

private counterparts; even the functions of the

legislature have a rough parallel in a corpora-

tion’s power to adopt by-laws or rules governing

employees, ete. But as this Court has twice de-

*It is extremely doubtful that when the “private”

traffic controller regulates public traffic, through the an-

thority delegated to him by CAA, such a respondeat su-

perior relationship exists with his employer, as to this

activity, as would result in vicarious liability. Such liabil-

ity rests upon the employer's right to control his servant's

conduct; it is clear that he cannot exercise control over the

tower operator’s conduct in regulating air commerce be-

cause that conduct is governed exclusively by CAA

regulations.

elared, “the liability assumed by the Government

here is that created by ‘all the circumstances’, not

that which a few of the circumstances might

create” (Feres, 340 U. S. at 142; Dalehite, 346

U. S. at 43), and the significant circumstances

would be those characterizing the particular ac-

tivity in our society as, on the one hand, historically

and dominantly public, or, on the other, as basically

private.”

In the present case, the Court of Appeals ig-

nored this Court’s admonition to look to all

the circumstances. The functioning of the con-

trol tower is vital and integral to the over-all

regulation of aeronautics by the federal govern-

ment, and it is closely akin to the control of the

other routes of commerce which the federal

government has carried on since the beginning of

the naiion. There can be no true private parallel

to such a regulatory activity. Perhaps the closest

analogy is the role of municipal and state police

officers who control traffic on the highways.

There is a great body of case law holding that,

because that activity is governmental, states and

municipalities are not liable for negligence in

* In Feres, injuries to soldiers were caused by malpractice

and by an inadequate heating device, circumstances which

clearly give rise to private liability. But this Court went on

to examine, and give controlling effect to, the additional cir-

_ cumstances present which, when considered as a whole, re-

| vealed that the negligent acts arose out of activities under-

taken in a special governmental context.

351324553

—

4 uv

30)

the regulation of traffic.” The decision below

by-passes these cases, despite this Court’s specific

indication that cases of that type are controlling

in determining whether the activity is to be re-

garded as basically governmental and therefore

exempt. Dalehite, 346 U.S. at 44.

3. The second branch of the Act’s govern-

mental function exclusion, Section 2680 (a), bars

recovery for governmental conduct traditionally

characterized as ‘‘discretionary,’’ as well as for

other activities involving discretion even though

they are fully comparable to those carried on

by private persons. The words ‘‘discretionary

function” constitute a long-familiar formula in the

jurisprudence holding state and municipal govern-

ments, and their employees, free from liability

for negligent mistakes in judgment in connection

with public activities designed to secure the

safety, health, and well being of the community.”

* The cases are legion. Only a few will be mentioned:

Ferrier v. City of White Plains, 262 App. Div. 94,28 N. Y.S.

2d 218, leave to appeal denied, 287 N. Y. 852 (policeman mis-

directed auto) ; Dorminey v. Montgomery, 232 Ala. 47, 166

So. 689 (negligent maintenance of traffic light) ; Powell v.

Nashville, 167 Tenn. 334, 69 S. W. 2d 894 (negligence re stop

sign); Doughty v. Phila. Rapid Transit Co., 321 Pa. 136,

184 A. 93 (negligent regulation of one-way street) ; Roberson

v. District of Columbia, 86 A. 2d 536 (D. C. Mun. Ct. of

App.) (negligent regulation of vehicles on sidewalks).

““!T]f the act complained of was done within the scope

of the officer's duties as defined by law, the policy of the law

is that he shall not be subjected to the harassment of civil

litigation or be liable for civil damages because of a mistake

of fact occurring in the exercise of his judgment or discre-

And these state and municipal cases have not

drawn any definitive distinction between “policy

level” and “operational level’ activities. Thus

local governments have been held immune from

suit for ngftigence in connection with fire fight-

ing,” health and safety measures,” or traffic con-

trol,“ even though the negligence was by so-called

operational level officials,

Nevertheless, the court below read the Dalehite

case as holding that only “ policy level’’ determin-

ations are excluded by Section 2680 (a). In

Dalchite, this Court stated that the discretion pro-

tected by the exception is the discretion of the

executive or administrative official “to act accord-

ing to one’s judgment of the best course,’’ and

that, “Where there is room for policy judgment

and decision there is discretion” (346 U. S. at

34, 36), but it did not limit the exemption merely

to high level policy judgment and deny it to

discretionary acts at the “‘operational level.” On

the contrary, after holding that the words cover

“Not only agencies of government * * * but all

employees exercising discretion” (346 U. S. at

tion * * *.” Cooper v. O'Connor, 99 F. 2d 135, 138 (C. A.

D.C.), certiorari denied, 305 U.S, 643.

* Rhodes v. Kansas City, 167 Kan. 719, supra, fn. 22; Fisher

v. City of Boston, 104 Mass. 87.

* Mead v, City of New Haven, 40 Conn. 72, supra, fn. 22;

Young v. State of New York, 278 App. Div. 997, 105 N. Y. S,

2d 657, supra, fn. 22.

“Ferrier v. City of White Plains, 262 App. Div. 94, 28

N. Y. S. 2d 218, supra, fn. 30,

33; emphasis added), the Court set out verbatim

the plaintiffs’ argument on that very point, and

then declined to accept the limitation, saying that,

“Tt is unnecessary to define, apart from this case,

precisely where discretion ends” (346 U. 8. at

35). At the very least, then, the decision below

passes on a question this Court expressly left

open in Dalehite.

Indeed, if there be ambiguity in the portions of

the Dalehite opinion just referred to, that am-

biguity was later resolved against the views of

the court below. For, in the Coast Guard portion

of the Dalehite opinion (id., 42-44), this Court

held that claims arising from negligence of the

Coast Guard in failing to supervise the storage

of the FGAN, in not enforcing existing safety

regulations, and in fighting the fire, were not

actionable.’ Plainly, supervising stowage, en-

forcing regulations, and fire fighting are “‘opera-

tional level’’ activities, and were not the result

of decisions at ‘‘a policy-forming level’’ as the

court below mistakenly declared (App. A, infra,

p. 33a).

By confining the discretionary function excep-

tion to “policy level’’ decisions, the court below

has seriously constricted its scope. The truth is

The Court specifically mentioned that such claims are

barred under Sec, 2674, because of the absence of analogous

private liability in like circumstances. The court below er-

roneously thought that the Coast Guard aspect of Da/ehite

rests wholly on the discretionary function exception (App.

A, infra, p. 33a).

that it is not the official’s level or echelon which

determines the applicability of the exception;

rather, it is the discretionary nature of the act

or function itself—whether “diseretionary” be

taken in the special sense it has acquired in the

American law of public liability or in its more

general connotation of “involving judgment.”’

There are numerous decisions holding claims

barred under the discretionary function excep-

tion where it would be ludicrous to Say that a

policy-forming determination was involved, all of

which must be regarded as in conflict on this

point.”

“ Thus, the failure of federal law enforcement officers to

prevent a theft is negligence at the operational level, but has

been held within the discretionary function exception,

Goodwill Industries of El Paso v. United States, 218 F, 2d

270, 272 (C. AL 5). Similarly, the release of a mental patient

from a hospital is an operational level decision but within

the bar of the Section, Smart v. U ‘nited States, 207 F. 2d 841,

842-3 (C. A. 10) ; so, too, is the release of waters from a dam,

Olson v. United Ntates, 93 F. Supp. 150 (D.N, D.) ; Lauter-

bach v. United States, 95 F. Supp. 479 (W. D. Wash.) (both

cited with approval in Dalehite, 346 U. S. at fn. 32, p. 37);

also, the manner in which a particular prisoner is confined

or fed, Morton v. United States (C. A. D. C., June 9, 1955).

A licensing official who improperly fails to grant a license is

an operating level employee applying previously promul-

gated standards, but the resultant claim is not actionable. Cf.

Chournos v. United States, 193 F. 2d 321 (C. A. 10), certiorari

denied, 343 U. S. 977 (See. 2680 (a) applicable to denial of

grazing permit) ; Matreychuk v. United States, 195 F, 2d 613

(C. A. 2), certiorari denied, 344 U.S. 845 (Sec. 2680 (a)

applicable to OPA denial of rent increase). See also,

Schmidt v. United States, 198 F. 9d 82 (C. A. 7), certiorari

Sigs:

SRS RANT RIO IEEE CREA hv aS

In the present case, whatever level be ascribed

to the air traffic controller, his alleged acts of

negligence were ‘‘discretionary’’ in every sense.

The nature of the information, clearances, and

instructions which a control tower gives to a

pilot is largely left to the informed judgment of

the controller, who must deal with a situation

which may change radically from moment to

moment. Significant utterances here were oral

CAA regulations, authorized by written CAA

regulations, requiring the pilots to take specified

action. See supra, pp. 7-8." This type of

denied, 344 U. S. 896 (improper conduct of SEC investi-

gation).

In cases such as Johnston v. District of Columbia, 118

U.S. 19, Costley v. United States, 181 F. 2d 723 (C. A. 5),

and United States v. Gray, 199 F. 2d 239 (C, A. 10), relied

on by the court below, where the discretionary function doc-

trine was held inapplicable, the acts which caused the damage

were not themselves discretionary; these acts had been pre-

ceded by discretionary conduct, but the discretion was spent

before the wrongful conduct occurred and had no proximate

relationship to the tort.

8? Many airfields do not have control towers. At such

terminals, pilots land, take-off and space themselves by visual

reference in accordance with applicable air traffic regula-

tions. 14 C. F. R. Pt. 60. It is hardly conceivable that the

United States could be held liable in tort for a collision re-

sulting from a pilot’s adherence to an inadequate air traffic

regulation. Clearly, the same result should follow when the

written regulation is replaced by the spoken voice from a con-

trol tower. CAA _ was under no obligation to construct and

operate the tower, “and if it voluntarily undertook to do more

than the law required, it did not thereby subject itself to a

new or greater liability. It acted in a governmental ca-

pacity, and was no more responsible for failure in that re-

conduct seems to us to fall squarely within the

core of Section 2680 (a); it is regulatory in as-

pect and calls for the exercise of true judgment

and discretion in the carrying out of a purely

governmental undertaking.”

4. It is clear from the legislative history of

the Tort Claims Act that Congress specifically in-

tended to exclude from its coverage claims based

upon the regulatory activities of the Government,

even when negligently performed. Various of

spect than it would have been for failure to furnish adequate

police protection” at the airport (ef. German Alliance Ins.

Co. v. Home Water Co., 226 U. 8. 220, 227-8).

* The few cases involving liability for negligence of air-

port control towers have reached divergent results. Com-

pare Georger, Admx. v. United States, 1949 U. S. Aviation

Rep. 113, 114 (E. D. Va.) (liability for tower negligence

barred by discretionary function exclusion) with Marino v.

United States, 84 F. Supp. 721 (E. D. N. Y.) (liability im-

posed, but governmental and discretionary function defenses

were not raised). See also Finfera v. Thomas, 119 F, 2d 28

(C. A. 6) (prior to Civil Aeronautics Act, city not liable for

tower defection).

In the courts below, respondents relied upon a number of

cases holding a municipality liable for a collision between a

plane and some obstruction at its airport. There, liability

was based on the ground that the proprietor of an airport,

like any occupant of land, owes a duty to business invitees to

provide safe premises Neither court below relied on these

cases. The fact that the accident occurred at the National

Airport, the only public airport operated by the United

States, is a fortuitous and irrelevant circumstance to the

legal issues involved here. Whatever “housekeeping” duties

the Government may have as an airport owner, the regula-

tion of air traffic throughout the nation by CAA operated

towers is a separate and distinct function, in no way con-

nected with ownership of the particular airports. See supra,

pp. 6-8, 26-28,

the earlier proposed tort claims bills had ex-

emptions relating to specifically designated

spheres of regulatory activity. There were, for

example, provisions exempting claims arising

from the activities of the Federal Trade Com-

mission and of the Securities and Exchange Com-

mission.” These specific exemptions were de-

leted and more general language was substituted

in order to give the exclusion much wider scope;

subsequently, Congressional committees reporting

on the revised bills (which ultimately became the

Act) stated time and again that, although it was

intended to permit recovery on claims arising

from the ordinary common law torts of employees

of regulatory agencies, such as a claim based upon

a collision with a regulatory agency’s vehicle, the

Act was designed to exclude claims based on the

regulatory activities of those agencies. See the

reports cited and quoted in Dalchite v. United

States, 346 U.S. 15, at fn. 21, p. 29.”

* £. g., sec. 303 (7) of S. 2690, 76th Cong., Ist Sess.; sec.

303 (7) of H. R.5299, 77th Cong., Ist Sess.

*° Mention of specific regulatory agencies was deleted dur-

ing the 77th Congress when the discretionary function excep-

tion (now in 28 U. S. C. 2680 (a)) was inserted. Explaining

the revision, a Committee memorandum stated, “Since the

language used * * * exempts from the act claims against

Federal agencies growing out of their regulatory activities,

it is not necessary to except such agencies * * * by name

* * *. However, the present bill is intended * * * to cover

claims for common-law torts, such as those involving a motor-

vehicle collison, against the Federal Trade Commission, the

Securities and Exchange Commission, and other regulatory

The exclusion of claims based upon asserted

negligence in the performance of purely regula-

tory activities is, as we have pointed out above, but

one aspect of the broader exclusion from the statute

of claims based upon the performance of acts of a

uniquely governmental nature. ‘The legislative

history indicates,”’ this Court said after extensively

reviewing that history, “that * * * it was not con-

templated that the Government should be subject

to liability arising from acts of a governmental

nature or function.”’ Ibid., at pp. 27-28. The

decision below ignores this legislative history and

effectively thwarts the Congressional purpose,

reaching a result contradictory to both."

agencies.” Memorandum for the Use of the Committee on

the Judiciary, H. of Rep., 77th Cong., 2d Sess., Explanatory

of Committee Print of H. R. 5373 (Jan. 1942), p. 8 [emphasis

added].

“Insofar as the present case imposes liability on the

United States for failure to give appropriate warnings

to each plane concerning traffic hazards, it also conflicts

in principle with the decisions of the Eighth and Ninth

Circuits in National Mfg. Co. v. United States, supra

(210 F. 2d at 275-6), and Clark v. United States, 218 F.

2d 446, 452, both holding that the Act excludes claims

arising from erroneous warnings concerning the dangers

of floods. Apart from the governmental function exclu-

sion, such claims are barred by the negligent misrepre-

sentation exclusion of Sec. 2680 (h) (App. B. infra, p. 53a).

CONCLUSION

For the above reasons, it is respectfully sub-

mitted that this petition for a writ of certiorari

should be granted.

Simon E. Sosevorr,

Solicitor General.

Warren E. Burcer,

Assistant Attorney General.

Pau A, SWEENEY,

Lester 8S. Jayson,

Attorneys.

Avaust 1955.

APPENDICES

APPENDIX A

United States Court of Appeals for the District

of Columbia Circuit

Nos. 11991 and 11992

Eastern Arr Lines, INc., APPELLANT

vv.

Union Trust Company, ET AL., APPELLEES

Nos. 12017 and 12018

UniTep States oF AMERICA, APPELLANT

Vv.

Union Trust Company, Er AL., APPELLEES

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Decided February 8, 1955

Mr. Joseph W. H enderson, with whom Mr.

Richard W. Galiher and Mr. John M. Aherne,

of the bar of the Supreme Court of New York,

were on the brief, for appellant in Nos. 11991 and

11992.

Mr. Lester S. Jayson, Attorney, Department of

Justice, of the bar of the Court of Appeals of

New York, pro hac vice, by special leave of Court,

with whom Messrs. Leo A. Rover, United States

Attorney, Paul A. Sweeney, Attorney, Depart-

ment of Justice, and D. G. Galotta, Attorney,

Civil Aeronautics Administration, were on the

brief, for appellants in Nos. 12017 and 12018.

Mr. Lewis A. Carroll, Assistant United States

(la)

Attorney, entered an appearance for appellants in

Nos. 12017 and 12018.

Mr. David G. Bress, with whom Messrs. Shel-

don E. Bernstein, Alvin L. Newmyer and Jo V.

Morgan, Jr., were on the brief, for appellees in all

cases.

Before EpGERTON, WiLBuR K. MILLER anu « afy, |

Circuit Judges

Wiper K. Minter, Circuit Judge: On the morn-

ing of November 1, 1949, an Eastern Air Lines

DC-4 plane was flying from New York to Wash-

ington, carrying fifty-one passengers and a crew

of four. When it was on final approach for land-

ing on runway 3 at the Washington National

Airport and at an altitude of about 300 feet, the

airliner was struck from above and behind by a

P-38 military-type aircraft just purchased by the

Bolivian Government, which was being tested by

a Bolivian military pilot, Eric Bridoux, who was

its only occupant. The DC-—4 was cut in two.

The forward part fell in the Potomac River, the

after portion on the Virginia shore. All fifty-

five persons aboard were killed. The P-38, badly

damaged, of course, plunged into the river but

somehow Bridoux escaped from the cockpit. He

was rescued and, despite serious injuries,

survived.

These suits were brought in the United States

District Court for the District of Columbia, by

the Union .Trust Company and Melville W.

Stuart as the executors of Ralph F. Miller and

Mildred E. Miller, his wife, who were passengers

on the DC-4. Eastern Air Lines, Inc., and Eric

Bridoux were named as defendants in two of the

actions and the United States was the defendant

in the other two.” Many similar suits filed on

behalf of the estates of others who died in the

fatal crash are pending under an agreement that

the determination of liability in these cases shall

govern their disposition.’

Although the two captioned cases against Bri-

doux and Eastern were tried to a jury, and the

two against the Government to the court, by

agreement of the parties all four actions were

tried simultaneously. The jury found Bridoux

not “‘liable,’’ but found against Eastern Air Lines

in the sum of $50,000 for the estate of Ralph F.

Miller and in the sum of $15,000 for the estate

of his wife. In the Federal Tort Claims actions

against the United States, the trial judge held

the Government liable to the estates and fixed the

damages at $50,000 and $15,000 respectively.

Eastern Air Lines and the United States appeal.

We first summarize the factual background

which is essential to an understanding of the

reasons for reversal advanced by the appellants.

* Aubin & Lyons, t/a Universal Marine and Supply Com-

pany, were also named as defendants on the theory they

owned or had some interest in the P-38. They were dis-

missed when it appeared that title to the plane had passed

to the Bolivian Government.

*It was also agreed that the determination of the situs

of the accident (whether it occurred over the Potomac River,

which is in the District of Columbia, or over land in Vir-

ginia), made in these cases, shall be binding in all the

others. The situs is important because a Virginia statute

limits recovery for wrongful death to $15,000. In the Dis-

trict of Columbia there is no statutory limit.

The Washington National is a controlled airport;

that is to say, from a glass-enclosed observation

platform in a control tower standing above and

west of runway 3, employees of the Civil Aero-

nautics Administration observe arriving and de-

parting planes and direct their movements by

radio. An incoming plane may not land and a

departing plane may not take off until it receives

tower permission to do so.

The Administrator of Civil Aeronautics

adopted, and published in the Federal Register

October 14, 1949 [14 Fed. Reg. 6247-6250], a

regulation for the administration of the Wash-

ington National, which is a civilian airport owned

by the United States. Section 570.55 (c) of the

regulation is as follows:

conform to the air traffic pattern as pub-

lished jointly in the Airman’s Guide by

the Anacostia Naval Air Station, Bolling

Field and the Washington National Air-

port.

The air traffic pattern referred to is a map of

the airport and vicinity, with lines drawn over

it intended to show the general flight patterns for

taking off from and landing on the various run-

ways. For landing on runway 3, it shows a

southward pattern to a point south of Alexandria

(the downwind leg), then an east turn until over

the Potomac River (the base leg), then north-

wardly over the river to a point a short distance

northeast of Alexandria, where it curves to the

left over the Potomac Yards, and then a curve

to the right in a line for a straight approach to

runway 3. The drawing itself was published in

—7—"

the Airman’s Guide March 1, 1949, but was not

published in the Federal Register until August 7,

1952, long after the accident here involved. The

regulation published October 14, 1949, referred

to but did not include the traffic pattern.

Over Eastern Air Lines’ vehement objection,

the trial court admitted the traffic pattern when

it was offered in evidence by the appellees, and

charged the jury that it was a binding Federal

regulation, and that an unauthorized deviation

therefrom would be negligence per se. Eastern

admittedly had knowledge of the pattern.

On the morning of the accident Glenn D.

Tigner, one of the seven traffic control operators

who were working in the tower, was advised by

the Eastern DC-4 at about 11:38 a. m. that it

was over Beltsville, Maryland, 15 miles northeast

of the airport, and was asked for landing instruc-

tions. Tigner authorized it to enter a left traffic

pattern for landing on runway 3 and advised

the pilot to contact the tower again from a point

closer to the airport. Tigner testified that in a

second communication, when the Eastern plane

was still north of the airport, he cleared it to

land on runway 3.° He fixed the time of the

*The Administrator of Civil Aeronautics was called

by the court as a witness on the meaning of the phrase

“cleared to land.” He testified that when a plane in the

traffic pattern of an airport is “cleared to land,” the pilot of

the plane is thereby authorized to commence his landing

approach operation immediately; in other words, when a

pilot receives that clearance, wherever he may be in the traffic

pattern, there is no plane ahead of him and he may make

his turn at his discretion and consistently with the safe

management of his plane, and may come in and land at once

on the runway which has been designated by the tower.

¥ Shae, =

or ae

clearance as approximately 11:44 a.m. The

DC-4 continued its flight and entered the traffic

pattern as it had been directed to do. It had

circled from the pattern and was on a final ap-

proach for runway 3 when it was struck by the

Bolivian plane.

The Bolivian P-38 had taken off from runway

3 at 11:37 a. m. and therefore had been in the

air only between nine and ten minutes when the

collision occurred. Shortly after he had cleared

the DC to land, Tigner observed the P-38 at a

high altitude, circling Alexandria about seven

miles south of the airport, heading toward the

east and starting a turn to its left. Tigner was

then talking to another plane. He was informed

by a tower colleague the P-38 was requesting

landing instructions. He saw it continuing its

left turn and said by radio, ‘‘Bolivian 927, did

you request landing instructions?’ Bridoux re-

plied he had done so, whereupon Tigner told him

he was cleared to enter the left traffic pattern for

runway 3 and asked him to report on his down-

wing leg west of the airport.

Tigner said when he next saw the P-38 it was

about five miles southwest of the airport at about

4,000 feet heading northeastwardly with its gear

down and in a steep and rapid descent. At 11:45

a. m. he warned the DC-4 that the P-38 was in

traffic. He said to the P-38 ‘‘ Bolivian 927, make

a 360 to your left. Youare No.2toland. Traffic

That this is the only meaning of the phrase “cleared to

land” was the unanimous testimony of all the certified air

traffic controllers who testified on the subject. The trial

judge instructed the jury as a matter of law that such was

the meaning of the phrase “cleared to land.”

is an Eastern DC-4, turning final ahead and

below you.’’ Bridoux did not acknowledge the

message and did not turn as directed. Tigner

then called, “Bolivian 927, turn left, turn left.

You are No. 2 to land, following an Eastern DC-4

turning final ahead and below you.” Bridoux did

not acknowledge or comply.

During these transmissions the DC—4 was on its

base leg turning into final approach. When Tig-

ner saw the P-38 was not complying with his

instructions, he called the DC-4 and said, ‘‘East-

ern 537, make an immediate left turn. Traffic is

P-38 above and behind you.’’ The DCH, which

had gone only about a quarter of a mile on final

approach, responded with a surge of power into a

left turn. As it did so, the Bolivian plane struck it.

Bridoux testified that a minute after his take-

off he began to have engine trouble. He reported

that fact to the tower and requested landing in-

structions. Receiving no answer, he repeated his

request and the tower said, ‘“‘Land 2 on Runway

3,” which he understood to mean there tvas another

plane ahead of him behind which he was to land.

He testified he also understood this message to con-

stitute a clearance to land rather than merely

clearance to enter the traffic pattern.

When he was about two miles west of the air-

port descending at a rate of 500 to 600 feet a

minute, Bridoux said he saw a plane making a

final approach for a landing either on runway 36

or 3, which was either a Beechcraft C-45 or a

Lockheed C-60. He said, ““* * * T realized that

that was the reason I was No. 2 to land.” He

continued flying south until he was about five or

six miles south of the field and then made a 90-

351324—55-——_3

es ne ae ee

degree left turn. As he did so, he observed the

Lockheed or Beechcraft on the ground taxiing

toward the buildings. He had not seen it actually

Jand.

Having been told by the tower he was No. 2 to

land on runway 3 and having seen, as he thought,

that the plane which was No. 1 to land on that

runway had already done so and had taxied away,

Bridoux concluded it was unnecessary for him to

check with the tower to learn whether the plane

ahead of him had landed. We reproduce in the

margin* his testimony that he regarded the

*“Q. As a matter of fact, at that point you not only ac-

cepted that clearance which you told us was given, but you

made another complete 360-degree turn around the airport;

and then after you had done that, you started downwind leg

five or six miles.—A. Because I was No. 2 to land, sir.

“Q. You at no time, Captain, asked the identity of the

plane that was ahead of you, did you Captain?—A. No, sir.

“Q. And you had no way of knowing, based upon informa-

tion from the tower, that that plane was ahead of you, did

you, Captain?—A. Unless I see.

“(). And you didn’t see it.—A. I saw it on final approach,

the C-45 or C-60,

“(). What you are telling us is after getting that clearance,

you assumed the plane you saw was the one they meant was

ahead of vou?—A. Yes, sir.

“(). But you didn’t check with the tower to see if that was

the plane?—A, Why have I got to check, if I am seeing?

“Q. Tam not asking you why. Tam simply asking you if

it isn’t a fact that you didn’t check back with the tower to see

if that plane you saw was the one ahead of you.—A. It isn't

necessary, because T was seeing the airplane.

“€). Would yon please answer yes or no to my question?

You didn’t check back with the tower to see if that plane you

told us von noticed on final approach was the one ahead of

you, did you?—A. When T was on final approach, I called

the tower.

oyu?

ST ee

ee ws

tower’s statement, ‘‘You are No. 2 to land on

runway 3,” as absolute clearance to land after

he had decided for himself, without further com-

munication with or from the tower, that the No. 1

plane was out of the way.

“Q. Captain, I am asking you, sir, if after you saw that

plane, which you said seemed to be lined up for landing,

which seemed to be on approach for landing on runway 3, did

you at any time thereafter ask the tower if that was the plane

that had been ahead of you?—A. No, I didn’t ask. It wasn’t

necessary to.

“Q. You did not ask the tower A. Because it wasn’t

necessary. I was seeing the airplane. I was watching it.

“Q. What you mean is you saw a plane.—A. Yes, sir.

“Q. You have no way of knowing whether that one was

the one the tower was referring to, or some other plane, have

you, Captain?—*. There was a way, because he was on final

approach. If he didn’t land yet, I understand he is No. 1.

“Q. Isn’t it a fact that from that point on there was a lapse

of four or five minutes before you came in, on your own final

approach ?—A. More or less,

“Q. And you never contacted the tower to find out where

the plane that was No. 1 was, did you?—A. I called on final

approach, advising them I was on final, and they could tell me

anything at that time, in order to realize that.

“Q. That was after you had lined up for runway 3, wasn’t

it?—A. No, sir.

“Q. You said you were on final approach.—A. On final:

but the final is not just the straight line. The final is after the

turn from base leg.

“Q. Did you ask the tower for any permission before you

lined up for final approach?—A. No,

“Mr. Bress. He hadn’t said he lined up for final approach.

“The Witness. I called to the tower, after the turn from

base and I began the final approach.

“By Mr. Gariner:

“Q. And you didn’t ask the tower for permission before

you began the final approach, did you?’—A. I didn’t have to

10a

After seeing the Lockheed or Beechcraft taxiing

from runway 3, Bridoux flew on for about one

and one-quarter miles and made another 90-degree

left turn to proceed on final approach, after which

he headed north flying at 150 m. p. h. and at an

altitude of about 1,200 feet. He said he then

called the tower, advising he was on final ap-

proach and that the tower responded, saying,

‘‘Bolivian P-38, prepare to land on runway 3,”

and gave him the wind direction; and that he

ask the tower for permission, after I had been cleared for

landing, sir.

“Q. You hadn't been cleared to land at that point, had you,

Captain?—A. I had been cleared for landing, and the first

call from the tower cleared me for landing.

“Q. You mean when you were told you were No, 2 to land

on runway 37—A. Yes.

“Q. And that is the only clearance you have had up to this

point ?—A. I know I was the second.

“Q. And that was issued upon the final approach!—A. No;

it was before the final approach.

“Q, Whether it was after or before you had begun the final

approach, you had begun the final approach before you got

any landing clearance from the tower.—A. No, sir. The first

call from the tower was when I was cleared for landing.

“Q. For what?—A. They cleared me for landing.

“Q. For landing No. 2?—A. Yes, sir.

“Q. Did you tell us that being cleared for landing No. 2 is

a landing clearance, a final landing clearance?—A. If they

mention that word, it is.

“Q. You say it was a final landing clearance, the clearance

that told you you were cleared to land on runway 3, behind

another plane, or No. 2, as I think you used it?—A. No. 2.

That was all.

“Q. No. 2. You have no way of knowing whether that

plane you told us you saw when you were on downwind leg

was the plane you later saw on the landing strip, or not, do

you?’—A. I saw the craft, and I assumed it was the No. 1, sir.

lla

acknowledged the instruction. He then put his

flaps down, reduced his speed to about 130 m. p. h.,

and began an §S turn to line up with runway 3.

As he did so he heard over the radio, ‘“‘Clear to

the left, clear to the left,’”’ but thought the instrue-

tion was for somebody on the ground. He did

not turn to the left or take any other action, but

continued on his course and the collision occurred

two or three seconds later.

“Q. That plane you told us you saw as you were on

downwind leg, west of the tower——A. Before.

“Q. Then you told us when you got down south, when you

were turning on base leg, you noticed a plane that was land-

ing or had landed—I think you used the expression——A.

Yes.

“Q. On the landing strip —A. Yes.

“Q. It was actually on the ground?—A. Yes, sir.

“Q. You had no way of knowing from that distance of

five or six miles away, did you, whether that was the same

plane you had previously seen, or some other plane, did

you?—A. I don’t know exactly. But I saw more or less

the same airplane.

“Q. And you never tried to contact the tower to inquire

whether or not the plane you had seen on final approach, as

you call it, when you were on downwind leg, was the plane

that was No. 1, did you?—A. But how am I going to ask

the tower that? Am I going to say ‘Is the plane I am seeing

No. 1?’ How is the tower going to know what plane I am

seeing? There was no reason of calling back to the tower.

“Q. It would have prevented this accident, wouldn't it,

if you had called the tower and inquired as to the identity

of the plane ahead of you?—A. Except that I happened to

observe this plane on final approach, not any other plane.

Therefore I assumed this was the No. 1. This was the only

one on final approach,

“Q. And that is where the trouble came in, because you

assumed that was the plane that was ahead of you, isn’t it,

Captain?—A. Probably, sir.”

12a

The visibility from the P-38 was structurally

limited so that Bridoux could not see ahead of

him except at a considerabie distance. He was

flying entirely by time, computing the distance

covered by multiplying his speed per minute by

the number of minutes traveled. He said that at

an altitude of 1,200 feet and four and a half miles

from the airport he could see nothing ahead and

below for a distance of two and one-half miles,

It is also observed that Bridoux said that as he

descended the nose of his plane was not more

than ten degrees under horizontal, and that he

was accomplishing the descent by reducing his

speed. Thus there was not enough nose declina-

tion to increase appreciably the extent of visi-

bility immediately in front of and below the P-38.

Bridoux did not see the Eastern DC-4 at any

time.

With the foregoing background, we turn to

Eastern’s contention that the court erred in ad-

mitting as evidence the approach and landing pat-

tern offered as an exhibit by the appellees; and in

instructing the jury it was a binding Federal reg-

ulation, a breach of which would constitute negli-

gence per se.

With respect to the traffic pattern, the court

charged the jury as follows:

* * * [T]his pattern in a general sense

provided that an aircraft arriving from the

north and desiring to land at the Washing-

ton National Airport on Runway 3 would

proceed ‘from north to west, in the general

vicinity of the Pentagon, and then proceed

from that direction south, on * * * its

downwind leg, and continue in that south-

erly direction south in the direction of the

13a

George Washington Memorial Temple and

south of the city of Alexandria; then turn-

ing due east on what is called the base leg,

and ultimately what is called the final

approach, a north or northeast heading.

*** This is the prescribed pattern.

But you are instructed as a matter of law

that there is nothing rigid about it. It

must be conformed to in a general way. In

other words, the pattern is not a line drawn

over the ground which must be followed by

the airplane in question. It is just exactly

as the word itself indicates, a pattern which

must be followed, but not with the rigidity

and the inflexibility of a line from one

point to another. Indeed, the very pur-

pose of flight traffic patterns is to control

traffic, and at an uncontrolled airport it

must be followed; but at a controlled air-

port, such as Washington, the controller

has the final say; and you are so instructed.

However, the unauthorized stepping out

of the pattern, leaving the pattern, depart-

ing from it—and note my language—the

. unauthorized stepping out of the pattern,

leaving the pattern, departing from it,

would be a violation of law, because the

pattern is prescribed by rule which has the

force and effect of law. And so, therefore,

unauthorized action of the character I have

just referred to would be negligence, as I

have defined that term to you, and would

be, as we lawyers say, negligence per se, in

other words, would be negligence as a result

of the very act itself and no further proof

would be necessary. This is the negligence,

in this aspect of the case, which the plaintiff

alleges against Eastern. * * *

In insisting the court erred in admitting the

traffic pattern as an exhibit and in instructing

l4a

the jury that it was a binding regulation and that

an unauthorized deviation from the pattern

would be negligence per se, Eastern relied on the

fact that the traffic pattern had not been pub-

lished in the Federal Register and cited Hotch vy.

United States, 208 F. (2d) 244, 250 (9th Cir.

1953), as authority that it was therefore not a

binding regulation. The pattern had been of-

ficially prescribed, however, and Eastern had

actual knowledge of it. In those circumstances

we think the pilots of the DC-4 were required to

follow the pattern and, since it is obviously a

safety measure to some extent, the court correctly

charged the jury that an unauthorized departure

from it was negligence per se.

It is undisputed that the Eastern plane did

leave the traffic pattern and circled into it again

on final approach to the runway. Its departure

from the pattern was not negligence if the tower

had cleared the plane to land. Conceiving that

an issue of fact had been developed as to whether

the DC had been cleared to land, the trial judge

submitted that question to the jury and

authorized it to return a verdict against Eastern

if it should determine landing clearance had not

been given,—that the Eastern plane had not been

authorized by the tower to leave the traffic

pattern as it did.

Whether this was error, as Eastern contends,

depends on whether there was substantial evi-

dence showing the DC-4 had not been cleared to

land. On this charge of negligence against East-

ern, as on all others, the burden of proof lay on

the appellees. As substantial evidence sustain-

ing the burden and showing the DC-4 had not

lda

been cleared to land when it deviated from the

pattern, they rely upon (a) their contention that

the Eastern plane was late and, in order to make

up time, short-cut the pattern without authority ;

(b) the testimony of Captain Ator; and (c) the

testimony of Lt. Shaw. We consider those points

in the order named.

(a) Even if it be conceded that the Eastern

plane was late, it by no means follows that its

pilots attempted an unauthorized landing to make

up time. The point is without substantial weight

as evidence of lack of landing clearance to the

DC.

(b) Appellees further argue that, if Eastern

was given any clearance, it was to land after the

P-38 ; and in support of the suggestion they point

to the testimony of Captain M. D. Ator, the check

pilot of American Flight No. 1, which at the time

of the crash was at the south end of runway 3

waiting to take off. Ator said his plane was

informed by the tower ground control that it could

take off after an Eastern DC-4 had landed. On

the basis of this evidence, appellees argue as

follows:

** * According to Tigner, he cleared

Eastern to land first and the P-38 to follow

Eastern. But if Ator was to take off after

Eastern landed, he would have conflicted

with the P-38. Thus the Ator testimony

indicates that if Eastern was cleared, it was

to land after the P-38, '

The argument rests on a false premise. Tigner

did not testify that he cleared the P-38 to land.

He testified that he told the P-38 it was “No. 2

to land on runway 3.” This did not authorize it

l6a

to leave the traffic pattern and descend. That it

was No. 2 to land does not mean that Ator could

not take off before it was cleared to land and after

Eastern landed. In any event this testimony of

Ator is insufficient to furnish a basis for a finding

that if Eastern was cleared to land it was to be

after the P-38.

National Airlines DC-4 en route from New York

to Washington on the morning of November 1,

1949. The pilot, Captain Porter, was handling

the radio. Shaw testified that when he was over

Beltsville, Maryland, he heard the Eastern plane

report by radio to the tower, giving its position

and trip number; and heard the tower clear it

to enter the left traffic pattern for runway 3.

Immediately afterward, at approximately 11: 42

or 11:43 a. m., he said his own plane was also

cleared to enter the left traffic pattern for runway

3, but was told to check again with the tower when

over Hains Point. He reached Hains Point at

11: 45 or 11: 46, and at that time heard another radio

communication which said, ‘‘Eastern, traffic, a

P-38,’’ with a direction added which he did not

remember. Shaw testified he did not at any time

hear any clearance to Eastern to land, although

he had earphones on continuously * and was on

tower frequency, just as Eastern was.

To the contrary, Tigner testified positively that

he cleared the DC-4 to land, after which it swung

from the pattern in a wide turn to approach run-

way 3. Headhered to that statement despite vigor-

* He qualified this statement somewhat by saying that, from

the time he was over Beltsville until his plane landed, “to

the best of my recollection I never took off the headset.”

17a

ous cross-eXamination. Tigner further said the

Eastern DC-4 followed his instructions through-

out the entire flight. The first notice to Eastern

that the P-38 was in the air was a few seconds

before the impact when the tower said, ‘‘Eastern

537, make an immediate left turn. Traffic is P-38

above and behind you.’’ Instantly responding to

this direction, the engines of the DC-4 roared and

the plane began a left turn but was struck before

it could escape.

Thus the question is whether Shaw’s negative

testimony that he heard no landing clearance

given Eastern had enough probative value, as

against Tigner’s affirmative statement that he gave

the clearance, to form an issue of fact for the jury.

It is generally held in railroad crossing cases

that negative testimony of a witness that he did

not hear a warning signal from a locomotive is

sufficient to form an issue of fact, in the face of

affirmative evidence that the warning was

sounded, provided the witness was in a position

to hear, and provided his attention was not dis-

tracted. A different situation is presented, how-

ever, when the witness is shown not to have been

in a position to hear or appears to have been

inattentive. The testimony of such a witness that

he did not hear the warning signal has little or no

probative force. Small v. Pennsylvania R. R.,

65 App. D. C. 112, 80 F. (2d) 704 (1935) ; Strider

v. Pennsylvania R. R., 60 F. (2d) 237 (6th Cir.

1932) ; Venchik v. Pennsylvania R. R., 18 A. (2d)

118 (1941); Lanier v. Missouri P. R. R., 9 La.

App. 586, 119 So. 710 (1929); Zotter v. Lehigh

Valley R. R., 280 Pa. 14, 124 Atl. 284 (1924) ;

Jensen Vv. Oregon Short Line R. R., 59 Utah 367,

18a

204 Pac. 101 (1922); Rickert v. Union P. R. R.,

100 Nev. 304, 160 N. W. 86 (1916); Young vy.

Erie R. R., 158 App. Div. 14, 143 N. Y. S. 176

(1913); Jordan v. Osborne, 147 Wis. 623, 133

N. W. 32 (1911) ; Hubbard v. Boston & A. R. R.,

159 Mass. 320, 34 N. E. 459 (1893). Under the

rule just stated Shaw’s negative testimony was

insufficient to form an issue if he either (a) was

not in a position during all the crucial nine-

minute period to hear messages sent from the

tower to the Eastern plane;° or (b) appears not

to have been attentive to all tower broadcasts

during that period.

It is an unquestioned and unquestionable fact

that Shaw was not in a position to hear messages

from the tower during all the critical nine-minute

period. He testified that, when the radio switch

button was depressed for transmission from his

plane, incoming messages on that frequency could

not be heard by him or Captain Porter. Conse-

quently, whenever the latter cailed the tower

during the nine-minute period, or depressed the

switch button for that purpose, it was impossible

for him or Shaw to hear a message broadcast

from the tower to Eastern.

Captain Porter did not turn his radio selector

to the tower until approximately 11:42 or 11: 43.

It follows that Shaw’s plane was on tower fre-

quency only during the last four or five minutes

of the critical nine-minute period. The evidence

is not clear as to when and how often during that

* The period from 11:38 a. m., when Eastern was cleared

into the pattern, until 11: 46-11:47 a. m., when the crash

occurred.

19a

brief period Porter depressed the switch button

to call the tower and so shut off Shaw’s ability

to hear a message from the tower to Eastern.

In this connection it is to be noted that Shaw

could not have heard the tower clearing Eastern

to enter the left traffic pattern which he said he

heard at approximately 11:42 or 11:43 while he

was over Beltsville. This is so because the

parties agreed and stipulated that Eastern re-

ceived traffic pattern clearance at 11:38 a. m.—

the exact time at which Shaw unequivocally said

he was over the Baltimore relay about 15 miles

northwardly from Beltsville,” with his radio not

yet tuned to the tower. It is therefore clear that

Shaw did not hear—as he said and no doubt

thought he did—the tower clear Eastern to enter

the traffic pattern.

What, then, did Shaw hear at approximately

11:42 or 11:43 a. m.? Tigner testified that at

approximately 11:44 a. m. he cleared Eastern to

land. Since both Shaw and Tigner were approxi-

mating the time, it may well have been that Shaw

heard the landing clearance given at that time and

inadvertently mistook it for traffic pattern clear-

"He was positive of that time and said the times of all

other incidents thereafter to which he testified were fixed

by him through arithmetical computations based on his

presence at the Baltimore relay at 11:38 a. m.

He described the Baltimore relay as “a radio fixing where

two beams meet * * * when you get a solid hum,” which is

approximately 15 miles northwardly from the Beltsville fan

marker. The latter is a 75-megacycle transmitter just

slightly northeast of Beltsville, Maryland. It makes a fan-

shaped transmission into the air, by which planes are in-

formed they are at Beltsville.

cas a .

cigs

20a

ance.* As we have said, it is certain he did not

hear Eastern’s clearance for the pattern. It fol-

lows that Shaw’s statement that he heard no land-

ing clearance to Eastern is unconvincing.

Moreover, Shaw’s general situation was not con-

ducive to careful attention, as he was operating

the controls of his plane as it came over Belts-

ville to Hains Point and to the airport. The

pilot, Captain Porter, was therefore primarily

responsible for radio communications during that

time. Shaw was handling the controls of a huge

airplane and knew his colleague was charged with

the duty of sending and receiving radio messages,

We cannot attribute to him undivided attention

to tower broadcasts to other planes, although he

may have had earphones on. This is not to say

he could not hear the communications he said he

heard ; but that he was not in the favorable attitude

of one whose negative testimony is for that reason

held to make an issue of fact.°

As to whether his testimony shows he listened

carefully to the messages sent to Eastern by the

tower—an illustration will be indicative: After

testifying that at 11:45 or 11:46 he heard the

tower say, ‘‘ Eastern, traffic, a P-38,’’ Shaw said,

“And at that point he gave them a direction;

® We observe that in a statement given March 4, 1950, to

an investigator of the CAB in Miami, Florida, Shaw said he

“heard the tower giving Eastern landing clearance.” To

be sure, he testified that in making the statement he had mis-

used the term “landing clearance.” But whether he in fact

misused the term “landing clearance” in describing the clear-

ance he heard, is open to serious question because, as we have

shown, he could not have heard the actual traffic pattern

clearance which was given earlier to Eastern.

® Captain Porter did not testify.

2la

but the direction didn’t register.’’ (By “direc-

tion’’ he said he meant the position of the P-38.)

The direction of the Bolivian plane given to

Eastern by the tower “doesn’t stick in my mind,”’

he said, although he remembered that a direction

was given. The full message was stated thus by

Tigner, who sent it: “Eastern 537, make an im-

mediate left turn. Traffic is P-38 above and be-

hind you.’’ (Tigner is corroborated by other

tower operators and also by undisputed evidence

that thereupon Eastern began an immediate left

turn.) So, Shaw’s possible inattention is shown

by the fact he heard only part of the message,

and remembered only part of what he heard.

All these considerations show the inadequacy

of Shaw’s negative testimony; that his claimed

failure to hear Tigner clear Eastern to land was

due to the depression of the switch which eut off

radio reception, or due either to inattention or

misinterpretation, and was not enough to raise an

issue of fact for the jury as to whether the DC-4

had left the traffic pattern without tower

authority to do so.

The negative testimony is weakened further by

the fact that, because of the human instinct of self-

preservation and the disposition of men to avoid

personal harm, Eastern’s dead pilots are presumed

to have acted with diligence and due care. Atchi-

son, T. & S. F. Ry. v. Toops, 281 U. S. 351, 356

(1930) ; Looney v. Metropolitan R. R., 200 U. S.

480, 488 (1906) ; Campbell v. District of Colum-

bia, 64 App. D. C. 375, 78 F. (2d) 725 (1935);

Baltimore & P. Rk. R. v. Carrington, 3 App. D. C.

101 (1894); Bratt v. Western Air Lines, 169 F.

(2d) 214, 216 (10th Cir. 1948); Northern Pac.

22a

R. R. v. Spike, 121 Fed. 44, 47 (8th Cir. 1903),

It has been said the presumption ‘‘rises to the

dignity of evidence.’? United States v. Fotopulos,

180 F. (2d) 631, 637 (9th Cir. 1950).

As we said in Universal Airline, Inc. v. Eastern

Air Lines, Inc., 88 U. S. App. D. C. 219, 188 F.

(2d) 993 (1951), it is not for us to substitute our

views for those of the trier of fact in the District

Court when there is conflicting evidence. But

here, as in that case, the evidence concerning the

erucial fact is without substantial conflict. Affirm-

ative testimony that the “Eastern plane was

cleared to land was not countered by evidence suff-

cient to form a factual issue; hence the appellees

failed to carry their burden of showing the con-

trary by a preponderance of the proof. The

intervention of the jury is required only where

some question of fact is actually in controversy.

»a(scanyan Vv. Arms Co., 103 U. S. 261, 266 (1880).

While there were other charges of negligence

against Eastern which were submitted to the jury,

certainly the principal accusation was that it at-

tempted to land without having been cleared by

the tower to do so. Since the trial court simply

asked the jury, ‘‘Is Eastern Air Lines liable?”

and the jury simply answered, ‘‘Yes,’’ we do not

know in what way its members considered East-

ern had been negligent; but we do know the jury

was authorized by the court to find against the

Air Lines if it should conclude the DC-4 had not

received landing clearance. We are therefore

forced to hold the trial court erred in submitting

to the jury the question whether the Eastern plane

unauthorizedly deviated from the traffie pattern.

ih Sin DRL AER ee eee sen ee BS tgs

Co LATE, Fee LE el 2 Mlle Mee TION Ree Oe

a a ee eS es Bg

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NE ee ee ae ee

23a

Having so held, we thing it unnecessary to dis-

cuss the other grounds for reversal advanced by

Eastern Air Lines. The judgments against it

will be reversed, and the cases will be remanded

for a new trial.

III

The principal question presented by the Gov-

ernment’s appeal is whether the United States has

consented to be sued for negligence of its control

tower employees in regulating air traffic at a pub-

lic airport. In answering the question, we must

construe the Federal Tort Claims Act which limits

the liability of the United States to that which a

“private individual’’ would have ‘‘under like cir-

cumstances,’ and excludes claims arising from

28 U.S. C. § 1346 (b) and § 2674 are as follows:

§ 1346 (b). “Subject to the provisions of chapter 171

of this title, the district courts * * * shall have exclusive

jurisdiction of civil actions on claims against the United

States, for money damages, accruing on and after January

1, 1945, for injury or loss of property, or personal injury

or death caused by the negligent or wrongful act or omis-

sion of any employee of the Government while acting

within the scope of his office or employment, under cir-

cumstances where the United States, if a private person,

would be liable to the claimant in accordance with the law

of the place where the act or omission occurred.”

§ 2674. “The United States shall be liable, respecting

the provisions of this title relating to tort claims, in the

Same manner and to the same extent as a private individ-

wal under like circumstances, but shall not be liable for

interest prior to judgment or for punitive damages.

“If, however, in any case wherein death was caused, the

law of the place where the act or omission complained of

occurred provides, or has been construed to provide, for

damages only punitive in nature, the United States shall

351324—55——5

24a

the performance of a discretionary function or

duty.”

The Government insists that its tower operators

perform governmental functions of a regulatory

nature; that no private individual has such power

of regulation; that therefore the Act does not per-

mit suit based on negligent performance of their

duties. The situation involved here, says the

Government, when viewed in all the circum.

stances, ‘‘cannot be equated to one which would

predicate analogous private liability,’’ and so it

is said the claims are excluded from the coverage

of the Tort Claims Act.

The history of the development of the control

tower is helpful in considering whether there is or

may be private liability analogous to that sought to

be imposed upon the United States in this case.

What is said to be the forerunner of the present

control tower was constructed in 1931 at an air-

be liable for actual or compensatory damages, measured by

the pecuniary injuries resulting from such death to the

persons respectively, for whose benefit the action was

brought, in lieu thereof. June 25, 1948, c. 646, § 1, 62

Stat. 983.”

“The pertinent portion of 28 U. S. C. § 2680 is as

follows:

“The provisions of this chapter and section 1346 (b) of

this title shall not apply to—

“(a) Any claim based upon an act or omission of an

employee of the Government, exercising due care, in the

execution of a statute or regulation, whether or not such

statute or regulation be valid, or based upon the exercise

or performance or the failure to exercise or perform a dis-

cretionary function or duty on the part of a federal

agency or an employee of the Government, whether or not

the discretion involved be abused.”

25a

port in Cleveland, Ohio. During the following

five years 20 other cities erected and operated

towers, and by 1939 there were 52 towers being

operated by municipalities.

Regulations promulgated under the Civil Aero-

nautics Act of 1938 provided for the issuance of

certificates of competence to tower operators; and

standard procedures, equipment, installations and

tower operating techniques were suggested, but

were not required to be adopted. November 1,

1941, the CAA issued a Manual of Operations

setting forth Standard Airport Traffie Control

Procedures, and shortly thereafter all certificated

tower operators were required to apply them.

In August, 1941, Congress appropriated funds

to enable CAA to maintain and operate a number

of towers. Through gradual increase in funds

available, the CAA was operating 165 of the

country’s 200 towers on November 1, 1949, the

date of the accident involved here. As late as

April 1954, there were still a number of towers

in operation which had not been taken over by

CAA personnel. The operators in those non-

Government towers must be certificated by CAA

before they may control civil aircraft in air com-

merce.” Such towers are subject to CAA inspec-

*49 U. S. C. § 401 (6) includes within its definition of

an airman “any individual who serves in the capacity of

* * * air-traffic control-tower operator.” And 49 U. S. C.

§560 (a) (2) prohibits any person from serving as an

airman in any capacity without an appropriate certificate

to so serve. To be eligible for a control tower operator

certificate an applicant must meet physical, experience and

other qualifications and must pass an examination on the

subject. of air traffic control. 14 Code Fed. Regs. Part 26.

26a

tion; * and the Administrator of Civil Aeronautics

has prescribed procedures and techniques which

must be followed by the towermen. Nevertheless,

these non-CAA controllers are not government

employees, and perform no governmental function,

Airports are usually constructec, maintained

and operated by municipalities, probably because

the cost of construction is great and the prospect

of financial reward does not attract private cap-

ital. But, as far as we know, as of November 1,

1949, there was no reason why a private individual

or a private corporation could not construct an

airport and operate a control tower manned by

its own operators certificated by the CAA. Such

an individual or corporation would of course he

liable for the negligence of privately employed

tower operators. It follows that, when the United

States entered the business of operating a civil

airport and an air traffic control tower in connec-

tion therewith, it assumed a role which might be

and was assumed by private interests. Hence,

under 28 U. 8. C. §§ 1346 (b) and 2647, the Gov-

ernment is liable for the negligent acts or omis-

sions of its control tower operators in the

performance of their functions and duties, un-

less those Code provisions do not apply because

the operators’ activities are of the sort described

in the exceptions subsection, § 2680 (a).

249 U.S. C. § 556 is as follows:

“The Administrator of Civil Aeronautics is empowered

to inspect, classify, and rate any air navigation facility

available for the use of civil aircraft of the United States,

as to its suitability for such use. The Administrator of

Civil Aeronautics is empowered to issue a certificate for

any such air navigation facility.”

27a

The United States insists that the subsection

applies, and shields it from liability here. It

argues that § 2680 (a)

* * * incorporates into the Act the his-

toric principle that the courts will not, in

a private action, revise or review executive

conduct involving the exercise of judgment

or discretion of a public character;

that the tower operators’ duties are public in na-

ture and involve the exercise of discretion and

judgment, with the result that neither the opera-

tors nor the United States can be held liable for

their negligent performance.

The nrinciple referred to is indeed historic, as

it was stated in Marbury v. Madison, 1 Cranch

[5 U. S.] 137, 169-170 (1803), and has since been

consistently adhered to. We have no doubt that

the principle was consciously restated by Congress

when it declared in § 2680 (a) that the United

States should not be liable on

Any claim * * * based upon the exer-

cise or performance or the failure to

exercise or perform a discretionary func-

tion or duty on the part of a federal agency

or an employee of the Government, whether

or not the discretion involved be abused.

The heart of the question, however, is whether

this case falls within the historic principle ;

whether the Government is correct in saying, as

the second step in its argument, ‘‘that the tower

operators’ duties are public in nature and involve

the exercise of discretion and judgment.’’ We

think the statement is incorrect, for the reasons

hereinafter given. We hold that the tower opera-

tors merely handle operational details which are

28a

outside the area of the discretionary functions and

duties referred to in § 2680 (a); and that, con-

sequently, the Tort Claims Act permits the Goyv-

ernment to be sued for damages sustained because

of their negligence.

Applicable authority is available to sustain our

view, as comparable questions have been con-

sidered by other courts. Costley v. United States,

181 F. (2d) 723 (5th Cir. 1950), involved the

question whether the Tort Claims Act permitted

the Government to be sued for the negligence of

its employees in an army hospital. A master

sergeant’s wife was admitted to the maternity

section. As an incident to delivering her child,

employees of the United States prepared and

injected into her body a drug which was intended

to be a spinal anaesthetic but in fact was a very

harmful substance which caused the woman to be

permanently paralyzed from the waist down.

The question on appeal from the District

Court’s dismissal was whether the employees

were under a duty to use due skill and reasonable

care in attending Mrs. Costley after having ad-

mitted her to the hospital under an army regula-

tion authorizing her admission, or whether they

were performing a discretionary duty or fune-

tion which, under § 2680 (a), cannot be made the

basis of a tort claim against the Government.

The Court of Appeals quoted the army regula-

tion that wives of soldiers may be admitted to

army hospitals when suitable facilities for hospi-

talization are available, and then said, at page

725:

With facilities available for her eare,

Mrs. Costley was admitted to the hospital

~e i ae

29a

pursuant to the above regulation. Having

decided that there were facilities available,

and having admitted her for treatment, the

hospital authorities no longer had any dis-

cretion to exercise with regard to whether

she was to receive careful or negligent

treatment. A duty arose at this point to

treat her with the same care, skill, dili-

gence, and ability, that would be owing by

a private person or corporation under the

same or similar circumstances.

In accord are Somerset Seafood Co. v. United

States, 193 F. (2d) 631 (4th Cir. 1951), and

United States v. Gray, 199 F. (2d) 239 (10th Cir.

1952). Judge Dobie’s Somerset opinion §suffi-

ciently distinguishes Feres v. United States, 340

U. S. 135 (1950), by saying, at page 634:

** * All that case really decided was

“the Government is not liable under the

Federal Tort Claims Act for injuries to

servicemen where the injuries [arose] out

of or are in the course of activity incident

to service.’’

The holding of the Costley, Somerset and Gray

cases was neither overruled nor impaired by the

later decision of the Supreme Court in Dalehite

V. United States, 346 U. S. 15 (1953).* That was

a test case representing some 300 separate per-

sonal and property claims aggregating $200,000,-

000 which were based on explosions of fertilizer

with an ammonium nitrate base, at Texas City,

Texas, in 1947. Suing under the Tort Claims Act,

“The Government says the Somerset Seafood Company

case was overruled by the Dalehite opinion. We think

not; our analysis of that opinion convinces us to the con-

trary.

30a

the plaintiffs claimed negligence substantially

on the part of the entire body of federal officials

and employees involved in a program of produe-

tion of the material—Fertilizer Grade Ammo-

nium Nitrate (FGAN)—in which the original

fire occurred and which exploded. This fertilizer

had been produced and distributed at the in-

stance, according to the specifications, and under

the control of the United States.

The question before the Court was whether the

acts and omissions alleged as negligence were

done or omitted in the performance of or failure

to perform a discretionary function or duty

within the meaning of § 2680 (a). The Court

said, at page 34:

* * * The ‘discretion’ protected by the

section * * * is the discretion of the ex-

ecutive or the administrator to act accord-

ing to one’s judgment of the best course,

a concept of substantial historical ancestry

in American law.”

The statement just quoted was supported by

footnote 30, which is as follows:

It seems sufficient to cite Marbury v.

Madison, 1 Cranch 137, 170; Spalding v.

Vilas, 161 U. S. 483, 498; Alzua v. Johnson,

231 U. S. 106; Louisiana v. McAdoo, 234

U. 8. 627, 633; Perkins v. Lukens Steel

Co., 310 U. S. 113, 131.

The Court went on to say, at pages 35 and 36:

It is unnecessary to define, apart from

* This is the “historic principle,” referred to in the Gov-

ernment’s brief, about which there can be no dispute. But,

as we have said, the real question here is whether tower

activities fall within the principle.

3la

this case, precisely where discretion ends.

It is enough to hold, as we do, that the

“discretionary function or duty’’ that ean-

not form a basis for suit under the Tort

Claims Act includes more than the initia-

tion of programs and activities. It also

includes determinations made by executives

or administrators in establishing plans,

specifications or schedules of operations.

Where there is room for policy judgment

and decision there is discretion. * * *

It was then pointed out that the Cabinet-level

decision to institute the fertilizer export program

was a discretionary act; that the basic “Plan”?

for the production of FGAN was drafted by the

Office of the Field Director of Ammunition Plants

in June, 1946, prior to beginning production.

It was further stated that each of the specifie acts

of negligence charged in the manufacture of

FGAN was in accordance with and done under

specifications and directions set forth in the basic

Plan for the production of fertilizer. Each of

the acts looked upon as negligence was directed

by this Plan. The Court concluded as follows,

at page 42;

In short, the alleged ‘‘negligence’’ does

not subject the Government to liability.

The decisions held culpable were all re-

sponsibly made at a planning rather than

operational level and involved considera-

tions more or less important to the

practicability of the Government’s fer-

tilizer program.

We may fairly infer from the statement just

quoted that the United States is liable for the

negligence of its employees at the operational

32a

level, where there is no “‘room for policy judg-

ment and decision.’’ This leads us to the Gov-

ernment’s argument that the negligence charged

against the tower operators is the same as that

charged against the Coast Guard in the Dalehite

case, which the Supreme Court held was not

actionable because of the discretionary exception.

We quote in the margin the Supreme Court’s

disposition of the alleged negligence of the

Coast Guard.”

16 346 U.S. at pages 42-43 and 44:

“The findings of negligence on the part of the Coast

Guard in failing to supervise the storage of the FGAN,

and in fighting the fire after it started, were rejected by a

majority of the Court of Appeals. 197 F. 2d at 777, 780,

781. We do not enter into an examination of these factual

findings. We prefer, again, to rest our decision on the Act.

“The District Court’s holding that the Coast Guard and

other agencies were negligent in failing to prevent the fire by

regulating storage or loading of the fertilizer in some dif-

ferent fashion is like his specific citations of negligence dis-

cussed above. They are classically within the exception.

‘The power to adopt regulations or bylaws * * * for the

preservation of the public health, or to pass ordinances pre-

scribing and regulating the duties of policemen and firemen

* * * are generally regarded as discretionary, because, in

their nature, they are legislative.’ Weightman v. Corpora-

tion of Washington, 1 Black 39, 49. The courts have tradi-

tionally refused to question the judgments on which they are

based. Zywicki v. Jos. R. Foard Co., 206 F. 975; Gotowski

v. Mayor of Baltimore, 127 Md. 502, 96 A. 630; State v.

General Stevedoring Co.,213 F. 51.

“As to the alleged failure in fighting the fire, we think this

too without the Act. The Act did not create new causes of

action where none existed before.

_ ““ * * the liability assumed by the Government here is

that created by “all the circumstances,” not that which a few

of the circumstances might create. We find no parallel

33a

The Court made it clear that, as far as the al-

leged official dereliction of duty in failing to police

the shipboard loading was concerned, the decision

not to do so had been made at a policy-forming

level and was not the decision of the individual

members of the Coast Guard whose duty it would

have been to do the policing had they been

instructed to do it. The Court said:

* * * To impose liability for the alleged

nonfeasance of the Coast Guard would be

like holding the United States liable in tort

for failure to impose a quarantine for, let

us say, an outbreak of foot-and-mouth

disease.

We may paraphrase the quoted sentence thus:

To impose liability for the alleged non-

feasance of the Coast Guard would be like

holding the United States liable in tort for

the failure of the CAA to take over for

maintenance and operation a certain air

traffic control tower.

Had the Coast Guard authorities decided to super-

vise the storage, we have no doubt the United

liability before, and we think no new one has been created by,

this Act. Its effect is to waive immunity from recognized

causes of action and was not to visit the Government with

novel and unprecedented liabilities.’ Feres v. United States,

340 U.S. 135, 149.

It did not change the normal rule that an alleged failure

or carelessness of public firemen does not create private

actionable rights. * * *

* * * * *

“* * * To impose liability for the alleged nonfeasance

of the Coast Guard would be like holding the United States

liable in tort for failure to impose a quarantine for, let us say,

an outbreak of foot-and-mouth disease.”

34a

States would have been liable in tort for any

causal negligence of its personnel acting at the

operational level. So it is here: discretion was

exercised when it was decided to operate the

tower, but the tower personnel had no discretion

to operate it negligently.

The distinction between non-actionable planning

and actionable negligence in carrying out the

plan, was clearly stated by the Supreme Court in

Johnston vy. District of Columbia, 118 U. 8. 19

(1886). Johnston’s property was damaged when

a sewer overflowed. He sued the District of Co-

lumbia, alleging that it “knowingly constructed

and continued upon an unreasonable and defec-

tive plan, and of inadequate capacity for its pur-

pose, and wrongfully permitted [it] to become

clogged up.’’ The Court said, at pages 20-21:

The duties of the municipal authorities,

in adopting a general plan of drainage, and

determining when and where sewers shall

be built, of what size and at what level, are

of a quasi judicial nature, involving the

exercise of deliberate judgment and large

discretion, and depending upon considera-

tions affecting the public health and gen-

eral convenience throughout an extensive

territory; and the exercise of such judg-

ment and discretion, in the selection and

adoption of the general plan or system of

drainage, is not subject to revision by a

court or jury in a private action for not

sufficiently draining a particular lot of

land. . But the construction and repair of

sewers, according to the general plan so

adopted, are simply ministerial duties; and

for any negligence in so constructing a

sewer, or keeping it in repair, the munici-

pality which has constructed and owns the

TRE

35a

sewer may be sued by a person whose prop-

erty is thereby injured.

With this distinction in mind, we turn to the

trial court’s opinion and find the following state-

ment as to the nature of the acts and omissions of

the tower operators which were held to constitute

negligence :

** * As to negligence, I find that there

was failure of the control tower personnel

to issue a timely warning to the Eastern

plane as to the P-38 being on final ap-

proach; in the failure, also, to warn the

P-38 that Eastern was on final approach;

in clearing both planes for the same runway

at approximately the same time, having in

mind their respective positions in relation

to each other and the speed of both their

approach and descent; and the failure to

keep both planes advised as to the activities

of the other; I find this to be negligence and

; concurrent both in character and in relation

to that found by the jury with respect to

that such negligence contributed proxi-

mately to the injury complained of.

The three negligent omissions and the one

affirmative negligent act found by the court were

not “decisions responsibly made at a planning

level”? and did not involve any consideration im-

portant to the practicability of the Government’s

program of controlling air traffic at public airports.

The tower operators acted, and failed to act, at an

operational level. While they were in a sense

exercising discretion as to what they should and

should not do, they were not performing the sort

of discretionary functions contemplated by § 2680

(a) and clearly described in the Dalehite decision.

gre

36a

*t is therefore our opinion that, if a Govern-

ment towerm: a negligently clears two planes to

land on the sane runway at the same time, or is

guilty of some other negligent act or omission in

doing his work, the Government is liable for re-

sulting injury in the same manner and for the

same reason that it is liable for injury done by the

driver of a mail truck who, in exercising disere-

tion as to how to drive, negligently runs through

a red traffic light.

The Government contends, however, that even

though its theory of non-liability under § 2680 (a)

he rejected, the judements against it should be

reversed because the trial court’s findings do not

provide sufficient factual bases for its ultimate

conclusion of negligence. We deem it unnecessary

to do more than quote the pertinent findings of

fact, which expanded the above quotation from

the trial court’s opinion:

3. At all times in question, there was

available in good operating condition in the

control tower at said airport and in each

plane voice radio equipment for two-way

contact between said tower and either plane

or between the tower and both planes simul-

taneously.

4. For an adequate period of time before

the collision, both planes were visible to the

control tower personnel who observed said

planes and knew that said planes were on

converging approaches for landing on run-

way 3, and said personnel had an adequate

opportunity to give timely warnings and

instructions to each plane.

5. At all times in question, weather con-

** ditions at and near the airport were excel-

lent and visibility unimpeded.

tai

37a

6. At all times in question, the Washing-

ton National Airport and the control tower

facilities thereat were owned by the de-

fendant, United States of America, and

were being operated by it through its agents

and employees (the tower personnel) as-

signed thereto by the Civil Aeronautics

Administration, an agency of the United

States.

7. The said agents and employees of the

United States in their operation of the

control tower at said airport failed to ex-

ercise reasonable care and were guilty of

negligence in the circumstances in question

in that, having in mind the respective posi-

tions of said planes in relation to each other

and their speed of approach and descent:

(a) They failed to issue a timely warn-

ing to the Eastern plane concerning the

P-38 on final approach;

(b) they failed to warn the P-38 that

the Eastern plane was on final approach;

runway at approximately the same time; and

(d) they failed to keep both planes ad-

vised of the activities of the other.

8. The negligence of United States

through its agents and employees, as set

out in finding No. 7 above, was a proximate

cause of the fatal collision resulting in the

deaths of plaintiffs’ decedents, and such

negligence of the United States also con-

curred with the negligence of Eastern as

the proximate cause of said collision.

9. The collision occurred over the Poto-

mae River within the boundary of the

District of Columbia.

These findings seem to us to be sufficiently in de-

tail to justify the conclusion of negligence.

38a

It is observed that the Government does not

directly charge that the evidence is insufficient to

support the findings of fact which were made by

the trial judge. We have considered the question,

however, and have concluded there was proof ade-

quate to support the findings, although it is

meager with respect to the finding that the tower

cleared both planes for the same runway at ap-

proximately the same time—which is probably

the most important of the findings. For, although

the trial court was amply justified in finding (con-

trary to the jury’s apparent conclusion) that the

Eastern plane was cleared to land—and indeed

could hardly have found otherwise,—there is only

slight evidence tending to show the Bolivian plane

was ever cleared to land.

Bridoux himself practically conceded his own

negligence (of which the jury rather unaccount-

ably exonerated him) in mistaking the message

“You are No. 2 to land” for actual and absolute

landing clearance. But he did say:

“T said ‘Washington Tower, Bolivian P-38 on

final approach.’ They responded to me immedi-

ately. * * * ‘Bolivian P-38, prepare to land on

runway 3.’’’ Consequently, if the trial judge

believed, as apparently he did, that Bridoux actu-

ally sent such a message and received such an

answer from the tower, there was some evidence

that the tower gave landing clearance to the

Bolivian as well as to the DC-+4. We cannot sub-

stitute our judgment on a factual issue for that of

the trial judge simply because we might have

reached a different conclusion.

As to all the foregoing, the court is unanimous.

We are divided, however, as to another con-

“tthe

Mg ’ -~

’ wTrElCUMahS ° —_

39a

tention of the United States which remains to he

considered: that it was error to measure the

Government’s liability under the law of the | dis-

trict of Columbia,” which does not limit the

amount of damages for wrongful death, instead

of under the law of Virginia, which limits recov-

ery to $15,000 for the death of one person. The

contention is based on the fact that, although the

planes collided in the District of Columbia, the

negligent acts and omissions of the tower opera-

tors occurred in the tower, which is in Virginia.

The general conflicts rule disregards the law

of the place of the negligent act or omission and,

instead, uses the law of the place where the injury

was sustained. My brothers Edgerton and Fahy

are of the view that the trial court erred in ap-

plying the general rule here because the ‘Tort

Claims Act provides in § 1346 (b) that—

* * * the district courts * * * shall have

exclusive jurisdiction of civil actions on

claims against the United States, for

money damages, * * * for * * * death

caused by the negligent or wrongful act or

omission of any employee of the govern-

ment * * * under circumstances where the

United States, if a private person, would

be liable to the claimant in accordance with

the law of the place where the act or omis-

sion occurred. [Emphasis supplied. }

They hold that Congress thus provided in ex-

plicit terms for the Government’s liability to

be measured under the law of the place where its

negligent employee’s act or omission occurred,

*The trial judge found from conflicting evidence that

the accident occurred over the Potomac River, which is in

the District of Columbia.

40a

and that therefore the Act requires Virginia law

to be applied in this case.

I do not agree that the language of § 1346 (b)

compels us to conclude that Congress had in mind

the general conflicts rule to which reference has

been made and intended to make it inapplicable in

situations such as this. I think the legislative

expression ‘‘in accordance with the 'aw of the

place where the act or omission occurred’’ was

intended to mean, and therefore shouid be con-

strued as meaning, “in accordance with the law

of the place where the tort oceurred.’’ An act,

in legal as well as in popular use, is not merely a

voluntary muscular contraction, but something

more. The word commonly includes the conse-

quences of the muscular contraction. If the de-

fendant pulls the trigger and the bullet kills a

man, in legal as in popular usage the killing is

said to be the defendant’s act.

In accordance with this usage, I interpret the

statutory words “act or omission’’ as including

not only the messages negligently sent or omitted

by the tower operators, but also their immediate

consequences, This is consistent with § 377 of

Restatement, Conflict of Laws (1934). which

reads: ‘‘The place of wrong is in the state where

the last event necessary to make an actor liable

for an alleged tort takes place.’’

My interpretation also accords with that indi-

cated by Assistant Attorney General Shea in his

testimony before the House Committee on the

Judiciary concerning the Tort Claims bill,” as

* Hearings before the House Committee on the Judi-

ciary, 77th Cong., 2nd Sess., on H. R. 5373 and H. R, 6463

(Jan. 29, 1942), p. 9.

J —— a

_ <a

being the then interpretation of the Department

of Justice. He said, when asked where a claim-

ant brings suit, “Either where the claimant re-

sides, or in the locale of the injury or damage.’’

[Italics supplied.] The witness was referring to

the venue provision of the then pending legisla-

tion which is now 28 U. 8. C. § 1402 (b):

(b) Any civil action on a tort claim

against the United States under subsec-

tion (b) of section 1346 of this title may be

prosecuted only in the judicial district

where the plaintiff resides or wherein the

act or omission complained of occurred.

(June 25, 1948, ch. 646, § 1, 62 Stat. 937.)

The words of § 1402 (b) which he was construing

are not only the same words which oceur in

§ 1346 (b), with which we are concerned, but also

were used with a direct reference to that section.

The judgments against the United States will

be affirmed, except that the judgment for $50,000

in No, 12017 will be reduced to $15,000 to meet

the limitation imposed by the law of Virginia on

the amount of recovery.

The judgments in Nos. 11991 and 11992 are

reversed and the cases are remanded for a new

trial.* The judgment in No. 10217 ts affirmed as

modified, and the judgment in No. 12018 is

affirmed.

*This provision was amended by the order of June 24,

1955, infra, p. 50a,

4la

42a

United States Court of Appeals for the District

of Columbia Circuit

January Term, 1955

No. 11991

Eastern Arr Lives, INc., APPELLANT

Union Trust Company, Er AL., APPELLEES

January Term, 1955

No. 11992

Eastern Arr Lines, INC., APPELLANT

Vv.

Union Trust CoMPANY, ET AL, APPELLEES

January Term, 1955

No. 12017

Untrep States oF AMERICA, APPELLANT

Union Trust CoMPANY, ET AL., APPELLEES

January Term, 1955

No. 12018

Untrep States oF AMERICA, APPELLANT

Union Trust Company, ET AL., APPELLEES

ff = a) ae ay aa eee

Appeals from the United States District Court

for the District of Columbia.

Before Epcerton, Witpur K. MILLER, and Fany,

Circuit Judges

43a

Judgment

These appeals came on to be heard on the record

from the United States District Court for the

District of Columbia, and were argued by counsel.

On consideration whereof, It is ordered and

adjudged by this Court:

(1) that the judgment of the said District Court

in Case No. 12018, United States of America vy.

Union Trust Company, et al. (Civil Action No.

4692-50) appealed from herein be, and the same

is hereby, affirmed;

(2) that the amount of judgment of the said

District Court in Case 12017, United States of

America v. Union Trust Company, et al. (Civil

Action No. 4691-50) appealed from herein be

modified in conformity with the opinion of this

Court and that said judgment as so modified be,

and it is hereby, affirmed ;

(3) that one-half the cost of the combined brief

filed by appellees in Cases Nos. 12017 and 12018

be taxed against the United States and that one-

half the cost of printing the joint appendix in

these cases be taxed against the United States;

(4) that the judgments of the said District

Court in Cases Nos. 11991 and 11992, Eastern Air

Lines, Ine. v. Union Trust Com pany, et al. (Civil

Actions Nos. 1892-50 and 1893-50) appealed from

herein be, and the same are hereby reversed, and

that said cases be, and the same are hereby re-

manded to the said District Court with directions to

award a new trial ;* and

“This provision was amended by the order of June 24,

1955, infra, p. 50a.

44a

(5) that the docket fees and the taxable cost of

the brief of appellant in cases Nos. 11991 and

11992 be taxed against appellees, Union Trust

Company, et al., as Executor and Ancillary Ex.

ecutor of the Estate of Mildred E. Miller, and as

Executor and Ancillary Executor of the Estate of

Ralph F. Miller, et al., and that one-half the cost:

of printing the joint appendix in these cases be

taxed against said appellees.

Dated February 8, 1955.

Per Circuit Judge Witpur K. Miter.

Filed February 8, 1955.

United States Court of Appeals for the District

of Columbia Circuit

January Term, 1955

No. 12017

United States OF AMERICA, APPELLANT

Vv.

Union Trust CoMPANY, ET AL., APPELLEES

No. 12018

Unirep StatTes OF AMERICA, APPELLANT

Union Trust CoMPANY, ET AL., APPELLEES

- Before Epcerron, Wiipur K. Minter and Fany,

Circuit Judges, in Chambers

United States Court of Appeals for the District

of Columbia Circuit. Filed February 28, 1955.

Joseph W. Stewart, Clerk.

45a

Order

Upon consideration of appellant’s motion for

an enlargement of time to March 24, 1955, to file

a petition for rehearing in bane and to stay the

mandate of this Court, and it appearing that

appellee and that appellant in case No. 11991 and

ease No. 11992 have consented thereto, it is

Ordered by the Court that the time within which

appellant may file a petition for rehearing in

bane be, and it is hereby, extended to March 24,

1955.

It is further ordered by the Court that the

issuance of the mandate of this Court be, and it

is hereby, stayed to and including March 24, 1955.

PER CurRIAM.

Dated February 28, 1955.

United States Court of Appeals for the District

of Columbia Circuit

January Term, 1955

No. 12017

Unirep States oF AMERICA, APPELLANT

Vv.

Union Trust COMPANY, ET AL., APPELLEES

No. 12018

Unirep States oF AMERICA, APPELLANT

Union Trust COMPANY, ET AL., APPELLEES

Before Eparrron, Witpur K. MILLER and Fany,

Circuit Judges, in Chambers

46a

United States Court of Appeals for the District

of Columbia Circuit. Filed February 28, 1955,

Joseph W. Stewart, Clerk.

Order

Upon consideration of appellees’ motion for

enlargement of time to March 24, 1955, to file a

petition for rehearing in bane, or by the division

which heard the cases, and it appearing that

appellant has consented thereto, it is

Ordered by the Court that the aforesaid motion

be, and it is hereby, granted.

Per Curiam.

Dated February 28, 1955.

United States Court of Appeals for the District

of Columbia Circuit

April Term, 1955

No. 12017

Unitep States OF AMERICA, APPELLANT

Union Trust CoMPANY, FT AL., APPELLEES

No. 12018

Unitep STates OF AMERICA, APPELLANT

Union Trust CoMPANY, FT AL., APPELLEES

Before Epcerton, PrerryMan, Witpur K. Mur

LER, BAZELON, Fany, WasHiINGTon, DANAHEB

and Bastian, Circuit Judges, in Chambers

47a

Order

Upon consideration of appellant’s petition for

a rehearing in banc in the above entitled cases,

it is

Ordered by the Court that the aforesaid peti-

tion be, and it is hereby, denied.

Per Curiam.

Dated April 15, 1955.

Chief Judge Stephens and Circuit Judge

Bazelon did not participate in the foregoing

order.

Filed April 15, 1955,

United States Court of Appeals for the District

of Columbia Circuit

April Term, 1955

No. 12017

Unirep States or AMERICA, APPELLANT

Union Trust COMPANY, ET AL., APPELLEES

No. 12018

Unirep States or AMERICA, APPELLANT

Union Trust COMPANY, ET AL., APPELLEES

Before Epaerton, Prettyman, Winpur K. Mr-

LER, BazeELon, Fany, WASHINGTON, DANAHER

and Bastian, Cireuit J udges, in Chambers

48a

Order

Upon consideration of appellees’ petition for

rehearing in bane or by the original division in

the above entitled cases, it is

Ordered by the Court that insofar as petition

is made for a rehearing in banc, the aforesaid

petition be, and it is hereby, denied.

PER CuRIAM.

Dated April 15, 1955.

Chief Judge Stephens and Circuit Judge

Bazelon did not participate in the foregoing

order.

Filed April 15, 1955.

United States Court of Appeals for the District

of Columbia Circuit

April Term, 1955

No. 12017

Unirep Srares oF AMERICA, APPELLANT

Union Trust CoMPANY, ET AL, APPELLEES

No, 12018

Unirep States oF AMERICA, APPELLANT

Union Trust CoMPANY, ET AL, APPELLEES

Before Eperrton, Acting Chief Judge, Witeup

K. Mitre and Fany, Circuit Judges, in

Chambers

49a

Order

Upon consideration of appellees’ petition for a

rehearing before the original division, and of

appellant’s response thereto, it is

Ordered by the Court that the aforesaid peti-

tion be, and it is hereby, denied.

Dated May 11, 1955.

Prr Curram.

Circuit Judge Wilbur K. Miller would grant

the aforesaid petition for rehearing,

Filed May 11, 1955.

United States Court of Appeals for the District

of Columbia Circuit

April Term, 1955

No. 11991

Eastern Air Lines, INC., APPELLANT

Vv.

Union Trust COMPANY, ET AL, APPELLEES

No. 11992

Eastern Arr LINES, INC., APPELLANT

Union Trust COMPANY, ET AL., APPELLEES

Before Eparrton, WiLBuR K. MILter and Fany,

Circuit Judges, in Chambers

Filed June 24, 1955.

50a

Order

Upon consideration of appellees’ motion for

leave to file a motion to clarify or modify judg-

ments in the above entitled cases, and it appear-

ing that said motion to clarify or modify judg-

ments has been lodged with the Clerk, it is

Ordered by the Court that the Clerk be, and

he is hereby, directed to file forthwith appellees’

motion to clarify or modify judgments; and upon

consideration of appellees’ motion to clarify or

modify judgments, and of appellant’s reply and

opposition thereto, it is

Ordered by the Court that the opinion of this

Court entered herein February 8, 1955 be, and

it is hereby, amended by adding on Page 36 after

the words “are remanded for a new trial’’ the

following words, “restricted to the issue of liabil-

ity’’, so that the sentence as amended will read:

The judgments in Nos. 11991 and 11992 are

reversed and the cases are remanded for a

new trial restricted to the issue of liability.

It is further ordered by the Court that the

judgment entered herein February 8, 1955, be,

and it is hereby, amended by adding in Para-

graph 4, in the fifth line, after the word “trial”,

but before the semicolon, the words, ‘‘restricted

to the issue of liability’’, so that said line as

amended will read:

to the said District Court with directions

to award a new trial restricted to the issue

of liability ; and

PER CurIAM.

Dated June 24, 1955.

dla

Supreme Court of the United States

No. , October Term, 1955

Unrrep SratTes or AMERICA, PETITIONER

Vv.

Union Trust Company, ET AL.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon consideration of the application of coun-

sel for petitioner,

It is ordered that the time for filing petition

for writ of certiorari in the above-entitled cause

be, and the same is hereby, extended to and in-

cluding August ninth, 1955.

Fevix FRANKFURTER,

Associate Justice of the

Supreme Court of the United States.

Dated this ninth day of J uly 1955.

APPENDIX B

The relevant provisions of the Federal Tort

Claims Act (60 Stat. 842, 62 td. 869, 933, 982

et seq., are as follows:

28 U.S. C. 1346 (b).

Subject to the provisions of chapter 171

of this title, the district courts, together

with the District Court for the Territory

of Alaska, the United States District Court

for the District of the Canal Zone and the

District Court of the Virgin Islands, shall

have exclusive jurisdiction of civil actions

on claims against the United States, for

money damages, accruing on and after

January 1, 1945, for injury or loss of prop-

erty, or personal injury or death caused by

the negligent or wrongful act or omission

of any employee of the Government while

acting within the scope of his office or em-

a arg under circumstances where the

nited States, if a private person, would

be liable to the claimant in accordance with

the law of the place where the act or

omission occurred,

* * - aa *

28 U.S. C. 2674.

The United States shall be liable, re-

specting the provisions of this title relating

to tort claims, in the same manner and to

the same extent as a private individual

under like circumstances, but shall not be

liable for interest prior to judgment or for

punitive damages.

* . * * *

(52a)

—

53a

28 U.S. C. 2680.

The provisions of this chapter and sec-

tion 1346 (») of this title shall not apply

to—

(a) Any claim based upon an act or

omission of an employee of the Govern-

ment, exercising due care, in the execution

of a statute or regulation, whether or not

such statute or regulation be valid, or

based upon the exercise or performance or

the failure to exercise or perform a dis-

cretionary function or duty on the part of a

federal agency or an employee of ‘he Gov-

ernment, whether or not the discretion in-

volved be abused.

* * * . *

(h) Any claim arising out of assault,

battery, false imprisonment, false arrest,

malicious prosecution, abuse of process,

libel, slander, misrepresentation, deceit,

or interference with contract rights.

U. &. GOVERNMENT PRINTING OFFICE, 1988

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.