Higginbotham v. Mobil Oil Corporation

• Decision Date: 25 April 1973
• Docket Number: Civ. A. No. 13954,13958,15316 and 15326.
• Citation: 357 F. Supp. 1164
• Parties: Mrs. Francis Nell HIGGINBOTHAM, Admx., etc., of Marshall K. Higginbotham, Deceased, etc. v. MOBIL OIL CORPORATION et al. Mrs. Wanda Moore LONG, Admx. of Est. of Deceased Joseph C. Long, Jr., etc. v. BELL HELICOPTER CO., etc., et al. Jeanette LeBlanc NATION, personal representative for Ella Menard Nation and Roy Glen Nation v. TEXTRON INDUSTRIES, INC., etc., et al. Mrs. Arline J. SHINN, Ind., etc. v. MOBIL OIL CORPORATION.
• Court: U.S. District Court — Western District of Louisiana

357 F. Supp. 1164

Mrs. Francis Nell HIGGINBOTHAM, Admx., etc., of Marshall K. Higginbotham, Deceased, etc. v. MOBIL OIL CORPORATION et al.

Mrs. Wanda Moore LONG, Admx. of Est. of Deceased Joseph C. Long, Jr., etc. v. BELL HELICOPTER CO., etc., et al.

Jeanette LeBlanc NATION, personal representative for Ella Menard Nation and Roy Glen Nation v. TEXTRON INDUSTRIES, INC., etc., et al.

Mrs. Arline J. SHINN, Ind., etc. v. MOBIL OIL CORPORATION.

Civ. A. Nos. 13954, 13958, 15316 and 15326.

United States District Court, W. D. Louisiana, Opelousas Division.

April 25, 1973.

COPYRIGHT MATERIAL OMITTED

Charles M. Thompson, Jr., Abbeville, La., for Nell Higginbotham and Jeanette LeBlanc Nation.

Jack C. Caldwell, Aycock, Horne, Caldwell & Coleman, Franklin, La., for Wanda Moore Long.

Jack C. Benjamin, Kierr & Gainsburgh, New Orleans, La., for Arline J. Shinn.

Carl J. Schumacher, Jr., and Robert E. Badger, Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, New Orleans, La., for third party plaintiff, Mobil Oil Corp.

Carl J. Schumacher, Jr., and Robert E. Badger Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, New Orleans, La., Ronald Neill, Dallas, Tex., for defendant Mobil Oil Corp.

Richard K. Christovich and C. Edgar Clouthier, Christovich & Kearney, New Orleans, La., James F. Fitzsimons, Mendez & Mont, New York City, for Bell Helicopter Co. and Bell Aerospace Corp.

NAUMAN S. SCOTT, District Judge:

These four actions were brought by the representatives of the pilot, Joseph Clyde Long, Jr. (Long), and three passengers, Marshall K. Higginbotham (Higginbotham), James Lex Shinn (Shinn) and James E. Nation (Nation), of a helicopter which crashed on August 15, 1967 in the Gulf of Mexico about 100 miles south of Morgan City, Louisiana. The aircraft was a Bell helicopter, Model 206A Jet Ranger, Serial No. 46 (the 46th such craft sold by Bell) bearing the official registration number N7846S. The aircraft was only two months old at the time of the crash, having been purchased by Mobil Oil Corporation (Mobil) from Bell Helicopter Company (Bell) on June 6, 1967. It had been flown a total of 165 hours and 45 minutes. Bell was the manufacturer and Mobil was the owner and operator of the helicopter. The pilot Long, an employee of Mobil, had left Morgan City at approximately 1:50 P.M. with Shinn and other passengers whom he dropped at Baxter Rig No. 3 where he had picked up the two other passengers Higginbotham and Nation. The aircraft took off from Baxter Rig No. 3 between 3:30 and 4:00 o'clock in the afternoon and simply disappeared without trace of the aircraft or its passengers except a small portion of the aircraft recovered later that afternoon, including the bottom part of the cabin with the pontoons attached and that portion of the tail-boom located in the rear of the horizontal stabilizer. The helicopter crashed between one and three miles from the site of takeoff.

Mrs. Frances Nell Higginbotham and Jeanette LeBlanc Nation, representatives of Higginbotham and Nation respectively, instituted their actions against Bell and Mobil. In both cases Mobil filed cross-claims against Bell seeking indemnification and/or contribution for all liability adjudged against Mobil, indemnity for all benefits paid under the Longshoremen's and Harbor Workers' Compensation Act and recovery for the loss of its aircraft.

Mrs. Arline J. Shinn, the representative of Shinn, filed her complaint (amended) against Mobil and Bell, and Mobil filed a third party demand against Bell similar to that filed by it in the other two suits.

Mrs. Wanda Moore Long filed her action against Bell. Mobil is not a party to this action. The four actions were consolidated for trial.

The accident occurred on high seas over the outer Continental Shelf in the Gulf of Mexico far outside the boundaries of the State of Louisiana, and thus satisfies the traditional locality test of jurisdiction, The Plymouth, 70 U.S. (3 Wall.) 20, 18 L.Ed. 125 (1866). The fated helicopter was owned and operated by Mobil in conjunction with its extensive offshore activities, and, at the time of the fatal accident, was performing the ordinary functions of a crew-boat. Unquestionably it was engaged in maritime activity and was not operating as a "land-based aircraft between points within the continental United States." Executive Jet Aviation v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). We have jurisdiction.

The liability of Bell, whether under the Death on the High Seas Act, the General Maritime Law, or the Laws of Texas or Louisiana, should first be considered as an issue of fact. The primary contention of plaintiffs and Mobil against Bell is that the tailboom of the N7846S completely separated from the remainder of the aircraft while in flight. The contention is that this separation occurred just aft of the horizontal stabilizer (the forward end of that portion of the tailcone identified as "Plaintiffs' Exhibit P-1"). As a result, the aircraft became uncontrollable and subsequently crashed into the Gulf of Mexico. Plaintiffs and Mobil further contend that Bell was negligent in designing and manufacturing a faulty product without adequate testing procedures and that this negligence on the part of Bell was the sole and proximate cause of the accident. Specifically, plaintiffs and Mobil advance and attempt to support the theory that a fatigue crack (or cracks) originating in the lower left quadrant (looking aft) of the 360° fracture on the forward end of Exhibit P-1, propagated in fatigue approximately four inches to a point at which the loads existing on the tailboom accelerated the propagation of the fracture which continued in tension resulting in complete separation. There is no dispute that the entire remaining circumference of the fracture on the forward end of P-1, save the approximate four inches mentioned above, failed in tension as opposed to fatigue. There is no disagreement that the tension portion of this fracture occurred relatively instantaneously, whether from loads in flight or loads which would occur upon striking the water. However, Bell disputes the existence of any fatigue fracture at all, and there is disagreement as to what effect the four or five inch crack (the alleged fatigue fracture above referred to) in this area of the tailboom would have on the ability of the boom to withstand the loads in experiences in flight operations over a period of several hours. Plaintiffs and Mobil offered no other contentions as to the direct cause of the disaster other than the separation of the portion of the tailboom in flight.

In determining this question of fact, the Court must rely on the testimony of experts who were most eminently qualified by education, training and experience. We have given due consideration to the comparative qualities of each of these experts; to their connections with the parties; to the extent and detail of the examinations conducted by each, and to the fact that very little (absolutely none of the main power and control units or instrument panel, no flight plan, no communication, no performance record, taped or otherwise) of the aircraft remained and was available for analysis. To this degree any conclusion of the court or the experts is suspect. Although the failure-in-flight theory is novel, part of the explanation for this is the fact that the magnesium monocoque tailboom structure itself was novel and had been marketed commercially by Bell for a period of only about eight months prior to the accident of August 15, 1967. We find, under the circumstances, that the case of plaintiffs and Mobil against Bell hinges entirely on the validity of its metallurgists experts, Adams and Stewart; that the testimony of their other witnesses is principally corroborative and must fall if the metallurgists have failed to establish that the fracture at the forward end of Exhibit P-1 commenced in fatigue and propagated within a minute or so to complete failure. In addition to the considerations noted above we have endeavored to determine whether the theory of these two metallurgists, Adams and Stewart, is supported by other evidence in the case. For this purpose we have addressed ourselves principally to the forward edge of P-1 and have kept this exhibit before us at all times during our examination of the testimony.

It is conceded by all parties that magnesium alloy is relatively more sensitive to corrosion than most aluminum alloys when brought into contact with salt water and that the fracture surface on the forward edge of Exhibit P-1 was in fact corroded. Both of plaintiffs' metallurgy witnesses testified that the corrosion was advanced to a point to which it would obliterate the "classic characteristics" of fatigue type failure. The surface was however sufficiently preserved in order to show conclusively, according to all experts that tensil type fractures clearly existed in the circumference from 8:00 o'clock clockwise to 5:00 o'clock, looking aft at Exhibit P-1 while it is in an upright position.¹

Having determined that the "classic characteristics" of fatigue fracture had been obliterated, plaintiffs' (and Mobil's) experts turned to less certain indicators. They were able to locate an area of relatively straight fracture which apparently can be indicative of fatigue failure. This is the area omitted from the reference to the tension fracture area mentioned above and extends from 5:00 o'clock clockwise to 8:00 o'clock. In portions of this questioned area there appeared a definite valley in about the center of the fracture face, running parallel to the lines formed by the outside edges of the fracture. Plaintiffs' (and Mobil's) metallurgy experts testified that such a formation was not found in tension fractures of sheetmetal material. Witness Stewart advanced the theory that the valley was caused by two separately occurring fatigue cracks, one on each side of the sheet metal, moving toward the center at an angle and converging to...