418 F.2d 180 (5th Cir. 1969), 26185, American Airlines, Inc. v. United States

Docket Nº:26185.
Citation:418 F.2d 180
Party Name:AMERICAN AIRLINES, INC., Appellant, v. UNITED STATES of America and Sara Ann Creasy, Appellees. Sara Ann CREASY, Appellant, v. UNITED STATES of America, Appellee.
Case Date:September 25, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 180

418 F.2d 180 (5th Cir. 1969)

AMERICAN AIRLINES, INC., Appellant,

v.

UNITED STATES of America and Sara Ann Creasy, Appellees.

Sara Ann CREASY, Appellant,

v.

UNITED STATES of America, Appellee.

No. 26185.

United States Court of Appeals, Fifth Circuit.

September 25, 1969

Rehearing Denied Nov. 17, 1969.

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[Copyrighted Material Omitted]

Page 182

W. B. Patterson, Jack Pew, Jr., Dallas, Tex., for American Airlines, Inc., Frederick B. Lacey, Daniel K. Read, Jr., Shanley & Fisher, Newark, N.J., Jackson, Walker, Winstead, Cantwell & Miller, Dallas, Tex., of counsel.

John H. McElhaney, Dallas, Tex., for Sara Ann Creasy, Speiser, Shumate, Goeghan & Krause, New York City, Turner, Rodgers, Winn, Scurlock & Terry, Dallas, Tex., of counsel.

Eldon B. Mahon, U.S. Atty., Kenneth J. Mighell, Asst. U.S. Atty., Dallas, Tex., William L. Morrow, Leonard Schaitman, Morton Hollander, Attys., U.S. Dept. of Justice, Washington, D.C., J. Carlisle DeHay, Jr., George Gardere, Dallas, Tex., Carl Eardley, Acting Asst. Atty. Gen., Attorneys, Department of Justice, Washington, D.C., for Boeing.

Before COLEMAN and SIMPSON, Circuit Judge, and MEHRTENS, District judge.

COLEMAN, Circuit Judge:

At one minute and thirty-five seconds past seven o'clock 1 on the evening of November 5, 1965, American Airlines Flight 383 crashed while approaching

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a landing at the Greater Cincinnati Airport. The aircraft, a Boeing 727, struck the ground at a point which was 225 feet below the elevation of the landing field. Of the sixty-two persons aboard, fifty-eight were killed.

Samuel O. Creasy, age twenty-nine, was one of those who lost his life. His widow, as administratrix of his estate and as next friend to his minor children, sued American Airlines for his wrongful death under the Kentucky statute, 2 alleging that American's negligence caused the crash. American denied negligence and filed a third-party complaint against the United States. Under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2674, alleging negligence on the part of employees of the Federal Aviation Agency and the Weather Bureau, American claimed indemnity and/or contribution from the United States. Mrs. Creasy then filed an amended complaint, also suing the United States. Not to be outdone in the salvo of pleadings, the United States then filed its own third-party complaint against American.

After an eighteen day trial, upon a jury verdict, judgment was entered against American in the sum of $175,000, plus funeral expenses. The District Judge found the United States not guilty of any negligence which contributed to the crash. American appeals against both Mrs. Creasy and the Government. Mrs. Creasy filed a protective appeal against the Government. We affirm the judgment of the District Court.

The crucial issue on this appeal is whether the findings of the District Court, exonerating the United States, were clearly erroneous, Rule 52(a), Federal Rules of Civil Procedure.

American Airlines sought to shift, or to reduce, its liability by charging the employees of the Federal Aviation Agency and of the Weather Bureau with negligence, wholesale and widespread.

The jury rendered an advisory verdict in favor of the United States on the Tort Claim. The District Judge, who must make the final factual decisions in Tort Claims cases, found that no employee of the United States Weather Bureau or of the Federal Aviation Agency was guilty of any negligent act or omission, in violation of his duties, which constituted a proximate cause of the accident. A thorough sifting of the record reveals no justification for an appellate opinion that this finding was clearly erroneous.

I The Facts

At 5:38 o'clock Flight 383 departed LaGuardia Airport, New York City, non-stop for the Greater Cincinnati Airport, Covington, Kentucky. The estimated flying time was eighty-three minutes. Prior to departure, the crew of Flight 383 obtained from the meteorology department of American Airlines a weather briefing and a forecast of both the weather enroute and the weather at Cincinnati. The forecast for the Cincinnati area for the period between 4:00 and 8:00 o'clock was

'1200 feet broken clouds and 3500 feet overcast above the level of the airport, visibility 4 miles, light rain and fog conditions variable to 1,000 feet overcast, visibility 2 miles, thunderstorm activity with moderate rain showers.'

There was expert testimony that such a forecast placed an American Airlines' crew, trained in meteorology, on continual vigilance for thunderstorm activity.

Before leaving LaGuardia, the crew filed an Instrument Flight Rule (IFR) plan.

Captain Weekly, an American Airlines pilot, was riding as a passenger. He survived the crash and testified that during the latter half of the flight the passengers were informed over the public

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address system from the cockpit that Flight 383 was being rerouted to circumnavigate weather-- that is, to avoid thunderstorms.

Captain Teelin, who had 225 hours of line flying in a Boeing 727, was in charge of the flight. He, however, was acting both as co-pilot and as check-airman for Captain O'Neill, who was at the controls. Captain O'Neill had received his Boeing 727 rating only eighteen days previously and had only 11 1/2 hours of line flying time in a 727. He had flown a 727 into the Cincinnati Airport one time previously, during the day time. There was evidence that at least one time during his 727 qualification training he experienced difficulty executing 'missed approach' technique, that is, the handling of the aircraft upon inability to complete a landing as previously authorized.

The Greater Cincinnati Airport is situated several miles south of the Ohio River. It has a field elevation of 890 feet above mean sea level. The crash occurred as Flight 383 was making an approach to land on Runway 18, which runs from north to south, and required an approach from the north because of prevailing wind conditions. Flying in a northerly direction, on its 'downwind leg', approximately four miles to the east of and parallel with Runway 18, the flight approached the airport from the southeast. It then flew across the Ohio River and turned in a generally westerly where the Ohio River turns northwesterly, the flight recrossed the river into Kentucky and initiated another left turn into its 'final leg' for a landing onto the north end of Runway 18. This turn, however, was never completed, for Flight 383 crashed into the tree-covered upslope of a hill on the south side of the river at an altitude of 665 feet above mean sea level, or 225 feet below the elevation of the runway. The wreckage was found approximately two miles north of the approach end of Runway 18, and approximately one quarter of a mile east of the runway center line as extended.

At 6:55:45 o'clock, Flight 383 made its first contact with the Federal Aviation Approach Control facility at Cincinnati. It was informed that an ILS (Instrument Landing System) approach to Runway 18 was available. At 6:57:46, the flight advised Approach Control that it had the airport in sight and requested 'a control VFR'. There is no such term in either government or airline manuals, but Control understood, no doubt correctly, that a visual approach was requested. The Approach Controller, Mr. Hyder, granted a visual approach clearance, which the flight crew accepted. Hyder notified 383 that there was precipitation lying just to the west boundary of the airport and that it was south bound. Visibility was seven miles, well above the prescribed three mile minimum for a visual approach.

At 6:58:14, the Local Controller, Mr. Reincke, was informed by Hyder (by inter-com) of the position of Flight 383 and of the clearance for a visual approach. Mr. Reincke occupied a position in the airport tower cab approximately 2000 feet east of Runway 18, which permitted him to see approaching aircraft.

At 6:58:50, Flight 383, then six miles southeast of the airport, was directed to switch to the radio frequency of the Local Controller. At 6:59:07, Flight 383 contacted Local Control. At that moment, however, Mr. Reincke was engaged in following another approaching aircraft, an Aero-Commander, identified by the number 'N 11L'.

At 6:59:26, approximately two minutes and nine seconds prior to the fatal crash, Local Control informed Flight 383 that it was 'in sight' and cleared to land on Runway 18.

Beginning with 6:59:20, we now quote verbatim the communications exchanged between the tower and the ill-fated flight. American Airlines 383 will be referred to as AA 383. The Local Controller will be referred to as LC. The

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Approach Controller will be referred to as AC.

"6:59:20

AA 383. How far west is that precipitation line now?

6:59:21

LC. Looks like its just about over the field at this time, sir, we're

not getting any on the field, however.

(As previously stated, Local control was speaking from a point 2000

feet cast of Runway 18).

6:59:26

AA 383. Okay.

6:59:30

LC. If we have a windshift I'll keep you advised as you turn onto

final.

6:59:34

AA 383. Thank you very much, we'd appreciate it.

6:59:56

LC. American three eighty three we are beginning to pick up a little

rain now.

7:00:00

AA 383. Okay.

7:00:14

AC to LC. How's American look out there?

(Intercom)

7:00:18

LC to AC. I don't think he's going to make it. 3 How about one lima (N

11L) at Mt. Healthy? How's he going to make out?

7:00:22

AC to LC. He's fine; he's nine north northeast.

7:00:26

LC to...

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