Tiffany v. US, Civ. A. No. 84-0100-C

• Decision Date: 27 November 1989
• Docket Number: 85-0040-C,85-0004-C,Civ. A. No. 84-0100-C,85-0048-C and 85-0052-C.
• Citation: 726 F. Supp. 129
• Court: U.S. District Court — Western District of Virginia
• Parties: Patsy O. TIFFANY, Administratrix, and Personal Representative of the Estate of Henry H. Tiffany, Deceased, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. BRANDON LADD CORPORATION, Third-Party Defendant. (In Re AIR CRASH OFF CHERRY POINT, NORTH CAROLINA, JANUARY 9, 1983).

726 F. Supp. 129

Patsy O. TIFFANY, Administratrix, and Personal Representative of the Estate of Henry H. Tiffany, Deceased, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. BRANDON LADD CORPORATION, Third-Party Defendant.

(In Re AIR CRASH OFF CHERRY POINT, NORTH CAROLINA, JANUARY 9, 1983).

Civ. A. Nos. 84-0100-C, 85-0004-C, 85-0040-C, 85-0048-C and 85-0052-C.

United States District Court, W.D. Virginia, Charlottesville Division.

November 27, 1989.

Frank A. Mika, Waynesboro, Va., Michael J. Pangia, Gilman, Olson & Pangia, Washington, D.C., for Patsy Tiffany.

John J. Tigert VI, Kathryn A. Ledig, Nicholas H. Cobbs, Tigert & Roberts, Washington, D.C., for Brandon Ladd.

E. Montgomery Tucker, Asst. U.S. Atty., Roanoke, Va., Thomas B. Almy, Torts Branch, Civ. Div., Dept. of Justice, Washington, D.C., for U.S.

Frederic A. Swartz, Swartz & Swartz, Boston, Mass., for Sean and Elizabeth O'Mahony.

J. Page Williams, Charlottesville, Va., pro se.

Nicholas H. Cobbs, Washington, D.C., Gregory N. Harney, Petree, Stockton, Robinson, Vaughn, Glaze & Maready, Winston-Salem, N.C., for Brandon Ladd and Patsy O. Tiffany.

Gerard R. Lear, Washington, D.C., William H. Hollows, New Bern, N.C., for Sally Furniss Witaker.

MEMORANDUM OPINION

MICHAEL, District Judge.

This matter arises out of a mid-air collision off the coast of North Carolina at approximately 16:44:46 EST on January 9, 1983, between a civilian aircraft, a Beechcraft Baron BE 55, and an F4-C phantom interceptor. The cause of action arises under the Death on the High Seas Act (DOHSA), 46 U.S.C.App. § 761 et seq. Plaintiff has brought the action on behalf of the estate of the deceased, Henry Tiffany, pilot of the Baron, and is seeking damages for pecuniary loss only, pursuant to 46 U.S.C. App. § 762. Offshores Logistics v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). Defendant United States has counterclaimed for $209,895 against third-party defendant Brandon Ladd Corporation, the lessee of the Baron Aircraft, for damage to the F4-C. Brandon Ladd seeks $45,000 from the United States for loss of the Baron.

After presentation of the evidence to this court, the respective parties have moved for judgment in their favor. Having carefully considered the evidence, this court, sitting as the sole trier of fact, finds that defendant United States bears the liability for the collision and, as such, grants plaintiff's motion for judgment and awards plaintiff damages in the amount of $1,394,342.00. Since this court finds the actions of the United States constitute the proximate cause of this accident, the court denies the United States' motion for judgment against Brandon Ladd Corporation and finds that Brandon Ladd is entitled to recover $45,000 as a consequence of the loss of its Baron Aircraft.

I.

At the time of his death, decedent Henry Tiffany was an experienced pilot with approximately 4,455 flying hours. He was fully certificated and sufficiently experienced to make the flight in question. Decedent possessed an instrument rating which meant that he was qualified to fly in instrument meteorological conditions. At approximately 13:00 EST, January 9, 1983, decedent submitted a flight plan at the Nassau, Bahamas, Airport which called for a flight to Norfolk, Virginia, via Wilmington, North Carolina. Pilots are required to enter flight plans when the intended flight would take the craft through the Air Defense Identification Zone (ADIZ). 14 C.F.R. § 99. Decedent's attention was directed by the flight service station supervisor to a Notice to Airmen (NOTAM) advising pilots entering the United States from the Caribbean that they should clear customs at certain designated Florida airports. Apparently because of the NOTAM, decedent refiled a flight plan listing Fort Pierce, Florida, as his initial touchdown point.

After leaving Nassau, decedent did not follow the accepted practice of "activating" his flight plan by contacting the flight service station. If not activated within an hour after takeoff, filed flight plans are considered void and decedent's revised flight plan which had been filed with the Nassau flight service station was then marked "DNA" Did Not Activate. Communications with the Bahamas being uncertain, it is possible that decedent attempted to modify his flight plan after takeoff. The court can only find that the plan was in fact not activated, but the court also declines to read into this apparent omission any intent on the part of decedent to deceive NORAD (North American Aerospace Defense Command) regarding the point of decedent's penetration of the ADIZ.¹

Rather than flying to Fort Pierce, Florida, decedent instead headed north, as would have been called for by his initial flight plan. At approximately 16:07:40, radar trackers at the NORAD control headquarters at Fort Lee, Virginia, ("FERTILE Control") detected an unidentified aircraft flying north toward the North Carolina coast. Since FERTILE Control had no flight plan correlating to that radar track, the aircraft was declared unknown. A responsibility of NORAD is to track and identify aircraft penetrating the ADIZ. If a radar target correlates with a filed flight plan, then the target is declared friendly and it receives no additional NORAD attention. If the target is classified as an unknown, it can be declared as a friendly in one of two ways: either by obtaining positional information from Air Traffic Control (ATC) centers which will correlate with the unidentified target or by identification pursuant to an interception.²

Pursuant to the designation of the Baron aircraft as an unknown track, two F-4 phantoms were scrambled from Seymour Johnson Air Force Base in Goldsboro, North Carolina, to make an official identification of the Baron. After the scramble, decedent attempted to contact the ATC facility in Leesburg, Virginia (ARTCC) at 16:30:32. Apparently, he received no immediate response but ARTCC did acknowledge the call at 16:31:26, referring to decedent's aircraft call sign "7142N." In this exchange, decedent told ARTCC that he estimated his position to be approximately 50 miles south of New Bern, North Carolina, an incorrect estimate, and his altitude to be 9500 feet. Decedent requested radar assistance to help him avoid some weather cells and informed ARTCC that he was "squawking 1200," i.e., that the Baron's transponder was emitting a nonspecific squawk which denotes visual flight rules.³ At 16:37:04, decedent communicated to ARTCC that he had recalculated his position to be 56 miles from the Wilmington VOR, a groundbased navigational transmitter. In his communication, decedent also identified for ARTCC the make and model of his aircraft.

By 16:37:42, ARTCC had passed to FERTILE Control information about the Baron's position, call sign, altitude, and aircraft type. While this information was sufficient under NORAD regulations to justify reclassifying the Baron as friendly, the ATC officers sought to confirm this information. The initial pass for a visual identification by the F-4s was cancelled by FERTILE Control because they were "coming in too hot," that is, their angle of approach was too sharp for an effective identification. The only information passed to the F-4s was that their target was "at approximately 9000 feet." Since the F-4s communicated on military frequencies and the Baron on civilian frequencies, the aircraft could not speak directly to each other. Thus, data emanating from either the F-4s or the Baron had to be relayed to ARTCC and FERTILE Control and only after that thence to the other protagonist. The court also finds that the F-4s were not given a local altimeter setting when the aircraft descended below 18,000 feet so that their altimeters could be recalibrated for an accurate altimeter reading. Thus, during the entire intercept procedure, the altimeter of the F-4 involved in this collision, JL-26, failed accurately to reflect its true altitude.

After repositioning, the F-4 which eventually collided with the Baron obtained the Baron on its radar at 16:41:18 and at 16:41:54 "called a Judy" (indicating that this aircraft, JL-26, was taking control of the intercept and was using its on-board radar to complete the identification). At virtually the same time, 16:41:55, ARTCC requested that the Baron perform an "IDENT," a procedure which causes the transponder to emit a specific identification signal. Following this "IDENT," ARTCC advised FERTILE Control at 16:42:20 that "We just had this ... Four Two November IDENT and that is him down there at Juliet Lima's the F-4C twelve o'clock and ... 6, 7 miles." The ARTCC transcript shows that FERTILE Control responded with a "Roger," although the FERTILE Control transcript omits part of the message. However this court discounts the contention of the government that parts of the transmission were "stepped on" and that the entire transmission was not intelligible to FERTILE Control, since FERTILE responded with a "Roger," indicating that a message understood as complete was received and comprehended.⁴

This court finds that information sufficient to identify the Baron was available by 16:37:42. However, even if the package of data was believed in good faith to be incomplete at that time, it is abundantly clear that data which would have justified aborting the intercept was passed from ARTCC to FERTILE Control at 16:42:20. However the confirmed identification received at 16:42:20 was not passed to the identification section at FERTILE Control until 16:43:57. The FERTILE Control Officer in overall control, the senior director, did not order the intercept terminated until 16:44:21 and this order was not passed to JL-26 until 16:44:42, only 2 seconds before the collision. In addition, the printout of the Semi Active Ground Environment (SAGE) system of FERTILE Control indicates that the status of the Baron was changed to friendly at 16:43:42.

After the JL-26 obtained the Baron on...