545 F.2d 422 (5th Cir. 1977), 74-1275, Higginbotham v. Mobil Oil Corp.

Docket Nº74-1275.
Citation545 F.2d 422
Party NameMrs. Francis Nell HIGGINBOTHAM, Admx., etc., of Marshall K. Higginbotham, Deceased, etc., et al., Plaintiffs-Appellees Cross-Appellants, v. MOBIL OIL CORPORATION et al., Defendants-Appellants Cross-Appellees. Mrs. Wanda Moore LONG, Admx. of the Estate of Deceased Joseph C. Long, Jr., etc., Plaintiff-Appellant, v. BELL HELICOPTER CO., etc., Defendan
Case DateJanuary 13, 1977
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 422

545 F.2d 422 (5th Cir. 1977)

Mrs. Francis Nell HIGGINBOTHAM, Admx., etc., of Marshall K.

Higginbotham, Deceased, etc., et al.,

Plaintiffs-Appellees Cross-Appellants,


MOBIL OIL CORPORATION et al., Defendants-Appellants Cross-Appellees.

Mrs. Wanda Moore LONG, Admx. of the Estate of Deceased

Joseph C. Long, Jr., etc., Plaintiff-Appellant,


BELL HELICOPTER CO., etc., Defendant-Appellee.

Jeanette LeBlanc NATION, Personal Representative for Ella

Menard Nation and Roy Glen Nation, Plaintiffs-Appellants,


TEXTRON INDUSTRIES, INC., etc., et al., Defendants-Appellees.

Mrs. Arline J. SHINN, Individually, etc., et al.,



MOBIL OIL CORPORATION and Bell Helicopter, Defendants-Appellees.

No. 74-1275.

United States Court of Appeals, Fifth Circuit

January 13, 1977

Rehearing and Rehearing En Banc Denied March 7, 1977.

Page 423

[Copyrighted Material Omitted]

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Carl J. Schumacher, Jr., Robert E. Badger, New Orleans, La., Ronald Neill, Dallas, Tex., for Mobil Oil Corp.

I. P. Saal, Jr., Gueydan, La., for Jeanette LeBlanc Nation, and others.

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

Jack C. Caldwell, Franklin, La., for plaintiffs-appellants.

Charles M. Thompson, Jr., Abbeville, La., for Higginbotham.

Richard K. Christovich, C. Edgar Cloutier, New Orleans, La., for Bell Helicopter.

James M. Fitzsimons, Mendes & Mount, New York City, for defendants-appellees.

Appeals from the United States District Court for the Western District of Louisiana.

Before THORNBERRY, GODBOLD and GEE, Circuit Judges.

THORNBERRY, Circuit Judge:

These four consolidated actions were brought to recover damages for the death of the pilot and three passengers of a Bell Jet Ranger helicopter that crashed in the Gulf of Mexico. Plaintiffs sought recovery from Mobil Oil Company, who owned and operated the helicopter, and Bell Helicopter Company, who manufactured it. Mobil cross-claimed against Bell for the cost of the aircraft and for indemnity as to any amounts it might be required to pay to the individual plaintiffs. The district court held Mobil liable for the death of Higginbotham, one of the passengers, under the Death On the High Seas Act 1 (DOHSA) and general maritime law. It likewise held Mobil liable for the death of Shinn, another

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passenger, under DOHSA, the Jones Act, 2 and general maritime law. The court found that Nation, the third passenger was a nonseaman employee of Mobil; thus, his representative's recovery was limited to benefits payable under the Longshoremen's and Harbor Workers' Compensation Act 3 (LHWCA). Finally, the district court exonerated Bell entirely, cutting off any recovery by pilot Long's representatives, who sued only Bell. 4 All parties appeal, except Bell.


The chief contentions raised in this court concern the district judge's (1) exculpation of Bell, (2) his application of res ipsa loquitur in finding Mobil liable to Shinn's and Higginbotham's representatives, and (3) his ruling as to passenger Nation. The parties also raise a number of subsidiary issues that require discussion. Nevertheless, the facts of the case are fairly straightforward. Mobil used the Bell-manufactured helicopter as an airborne crewboat, ferrying workmen to and from offshore drilling sites. On August 15, 1967, sometime between 3:30 and 4:00 o'clock in the afternoon, the aircraft took off from Baxter Rig No. 3 with all four decedents aboard. When it failed to arrive at its scheduled destination a search was instituted, and the searchers soon discovered wreckage from the helicopter floating several miles from the craft's point of departure. Only a few pieces of the Jet Ranger were recovered, no one witnessed its crash, and no bodies were ever recovered. There had been no radio communication with the helicopter before its disappearance.


The individual plaintiffs (and Mobil) contend that the district judge erred in holding that no case was made out against Bell. At trial they relied upon three different types of evidence to establish Bell's liability. First, they introduced the testimony of two "aircraft crash reconstruction" experts. These witnesses testified, in substance, that all physical evidence available including the allegedly inverted position of the helicopter when it hit the water, the pattern of damage to the recovered portions of the craft, and the position of the tailboom almost one-half mile from the remainder of the wreckage indicated, or was consistent with the theory, that the tailboom separated from the helicopter in mid-air causing it to plummet out of control into the water. Second, to give some substance to their mid-air separation theory, plaintiffs (and Mobil) introduced the testimony of metallurgists who stated that in their opinion the portion of the tailboom that was recovered contained a fatigue crack. From this crack, these witnesses theorized, a tension crack propagated over nearly the complete circumference of the boom, resulting in compression at the top of the boom and eventually a complete tearing off of the tail from the rest of the helicopter. Finally, plaintiffs (and Mobil) adduced evidence showing that the helicopter involved in the crash was of a new design and that repeated complaints concerning cracks appearing in the tails of these new aircraft compelled Bell to change the alloy used in the tailboom from magnesium to aluminum.

In brief summary, Bell's witnesses disputed the existence of any fatigue cracks in the tailboom, argued that the Jet Ranger represented the highest state of the art, and asserted that the cracks reported by other users of this model helicopter were viewed by Bell and most owners of the craft as a maintenance nuisance rather than a safety hazard. Bell's experts also offered explanations other than mid-flight separation of the tailboom for the pattern of damage to the recovered portions of the Jet Ranger.

The district judge weighed this testimony and entered the following findings of fact:

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The evidence does not establish that a fatigue fracture occurred in the tailboom . . . (and) is not sufficient to establish that an inflight separation of the tailboom caused the crash . . . . In fact, evidence is so insufficient that no actual, probable or suggestive cause of the crash . . . (can) be determined with any degree of certainty.

357 F.Supp. at 1171-72. In light of these adverse factfindings and the spectre of the "clearly erroneous" rule, plaintiffs (and Mobil) not unexpectedly invoke the doctrine that "findings induced by or resulting from a misapprehension of controlling substantive principles lose the insulation of F.R.Civ.P. 52(a) and a judgment based thereon cannot stand." Continental Motors Corp. v. Continental Aviation Corp., 5 Cir. 1967, 375 F.2d 857, 859. Specifically, they argue that the trial judge erroneously believed that Bell could be held liable only for some particular negligent act, while in fact, plaintiffs say, they alleged and proved a good cause of action under the doctrine of implied warranty or strict products liability.

Their reasoning goes something like this. The district judge stated that "the case of plaintiffs and Mobil against Bell hinges entirely on the validity of its metallurgists experts . . . (T)he testimony of their other witnesses is principally corroborative . . . ." 357 F.Supp. at 1168. This statement, together with the judge's emphasis on whether the evidence supported the existence of a fatigue failure, reveals the lower court's belief that plaintiffs needed to prove a specific defect in the helicopter. Under products liability doctrines, however, no specific defect need be shown as long as plaintiff establishes that the product malfunctioned. Accordingly, the testimony of the accident reconstruction experts constituted the main thrust of the case since that testimony suggested that the helicopter crashed after a mid-flight separation of the tailboom and the testimony of the metallurgists was merely corroborative and precautionary since no matter why the boom fell off, a helicopter whose tailboom did so under ordinary flight conditions must have been defective. Hence, the trial judge's misapprehension of the applicable law led him to emphasize the wrong evidence, and this mistaken emphasis accounts for his erroneous conclusion that the tailboom did not break off in mid-air.

Notwithstanding our respect for the ingenuity of plaintiff's theory, we cannot accept it. 5 Initially, we are not convinced that the district judge misunderstood the nature of plaintiffs' case. The complaint clearly alleged negligence, as well as other theories, and much of plaintiffs' evidence manifestly was intended to establish that Bell's testing and supervisory procedures were negligently conceived and executed. Hence, references to negligence in the lower court's opinion are hardly conclusive.

Second, plaintiffs fail to understand that the judge's finding that no mid-flight separation took place goes primarily to causation and only circumstantially to

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the existence of a manufacturing defect. 6 As the Second Circuit recently noted:

The burden of proving causation is on the plaintiff . . . and causation must be established under the doctrine of strict liability, as well as under ordinary negligence.

In re Marine Suplhur Queen, 2 Cir. 1972, 460 F.2d 89, 101-02; see also Leverson v. Boeing Co., 9 Cir. 1975, 510 F.2d 937. Thus, whether the district judge believed that these cases were based upon negligence or upon strict liability, his inquiry concerning causation would be essentially the same. Here plaintiffs' only explanation of the crash, as against Bell, was that the tailboom of the helicopter broke off in mid-flight. They needed to prove that theory before they could argue their strong circumstantial case that only a manufacturing defect could...

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