Eastern Air Lines v. Union Trust Company

• Citation: 221 F.2d 62
• Decision Date: 08 February 1955
• Docket Number: 11992,12018.,12017,No. 11991,11991
• Parties: EASTERN AIR LINES, Inc., Appellant, v. UNION TRUST COMPANY et al., Appellees. UNITED STATES of America, Appellant, v. UNION TRUST COMPANY et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

221 F.2d 62 (1955)

EASTERN AIR LINES, Inc., Appellant, v. UNION TRUST COMPANY et al., Appellees.

UNITED STATES of America, Appellant, v. UNION TRUST COMPANY et al., Appellees.

Nos. 11991, 11992, 12017, 12018.

United States Court of Appeals, District of Columbia Circuit.

Argued June 22, 1954.

Decided February 8, 1955.

Petition for Rehearing Denied in all Cases on April 15, 1955.

Petition for Rehearing Denied by the Division which Heard the Case on May 4, 1955.

Petition for Rehearing Denied by the Division which Heard the Cases on May 11, 1955.

As Amended June 24, 1955.

COPYRIGHT MATERIAL OMITTED

Mr. Joseph W. Henderson, Philadelphia, Pa., with whom Mr. Richard W. Galiher, Washington, D. C., and Mr. John M. Aherne, of the bar of the Supreme Court of New York, were on the brief, for appellant in Nos. 11,991 and 11,992.

Mr. Lester S. Jayson, Atty., Dept. 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, U. S. Atty., Paul A. Sweeney, Atty., Dept. of Justice and D. G. Galotta, Atty., Civil Aeronautics Administration, were on the brief, for appellants in Nos. 12,017 and 12,018. Mr. Lewis A. Carroll, Asst. U. S. Atty., entered an appearance for appellants in Nos. 12,017 and 12,018.

Mr. David G. Bress, with whom Messrs. Sheldon E. Bernstein, Alvin L. Newmyer and Jo V. Morgan, Jr., Washington, D. C., were on the brief, for appellees in all cases.

Before EDGERTON, WILBUR K. MILLER and FAHY, Circuit Judges.

Petition for Rehearing In Banc Denied in all Cases on April 15, 1955.

Petition for Rehearing Denied by the Division which Heard the Case in Nos. 11991-2 on May 4, 1955.

Petition for Rehearing Denied by the Division which Heard the Cases in Nos. 12017-8 on May 11, 1955.

WILBUR K. MILLER, Circuit Judge.

On the morning of November 1, 1949, an Eastern Air Lines DC-4 plane was flying from New York to Washington, carrying fifty-one passengers and a crew of four. When it was on final approach for landing 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.¹ 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.²

Although the two captioned cases against Bridoux 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. D.C. 113 F.Supp. 80. Eastern Air Lines and the United States appeal.

I

We first summarize the factual background which is essential to an understanding of the reasons for reversal advanced by the appellants. 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 Aeronautics Administration observe arriving and departing 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 Washington National, which is a civilian airport owned by the United States. Section 570.55(c) of the regulation is as follows:

"(c) Aircraft landing or taking off shall conform to the air traffic pattern as published jointly in the Airman\'s Guide by the Anacostia Naval Air Station, Bolling Field and the Washington National Airport."

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 runways. 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 northwardly 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 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 instructions. 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 3.³ He fixed the time of the 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 final approach 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-4 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 replied 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 downwind 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. You are No. 2 to land. Traffic 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 Tigner saw the P-38 was not complying with his instructions, he called the DC-4 and said, "Eastern 537, make an immediate left turn. Traffic is P-38 above and behind you." The DC-4, 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 instructions. Receiving no answer, he repeated his request and the tower said, "Land 2 on Runway 3," which he understood to mean there was another plane ahead of him behind which he was to land. He testified he also understood this message to constitute a clearance to land rather than merely clearance to enter the traffic pattern.

When he was about two miles west of the airport 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, "* * * I 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-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 land.

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....