American Airlines, Inc. v. United States
| Decision Date | 17 November 1969 |
| Docket Number | No. 26185.,26185. |
| Citation | 418 F.2d 180 |
| Parties | AMERICAN AIRLINES, INC., Appellant, v. UNITED STATES of America and Sara Ann Creasy, Appellees. Sara Ann CREASY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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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 Judges, and MEHRTENS, District Judge.
At one minute and thirty-five seconds past seven o'clock1 on the evening of November 5, 1965, American Airlines Flight 383 crashed while approaching 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.
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 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 11½ 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 direction on its base leg. At a point 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 numbers "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 Approach Controller will be referred to as AC.
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