Airlift International, Inc. v. United States

• Citation: 335 F. Supp. 442
• Decision Date: 21 December 1971
• Docket Number: No. 69-370-Civ.,69-370-Civ.
• Parties: AIRLIFT INTERNATIONAL, INC., a Florida Corporation, and Slick Corporation, Plaintiffs, v. UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

335 F. Supp. 442

AIRLIFT INTERNATIONAL, INC., a Florida Corporation, and Slick Corporation, Plaintiffs, v. UNITED STATES of America et al., Defendants.

No. 69-370-Civ.

United States District Court, S. D. Florida.

December 21, 1971.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Walsh, Dolan & Krupnick, Ft. Lauderdale, Fla., for plaintiffs.

Robert W. Rust, U. S. Atty., Miami, Fla., Neil R. Eisner, Dept. of Transportation, Federal Aviation Administration, Washington, D. C., for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT

KING, District Judge.

This action, tried by the Court, sitting without a jury, was brought upon a contract of insurance between the plaintiff, Airlift International, Inc., and the defendant, United States of America. Jurisdiction is based upon 49 U.S.C. § 1540.

The Court, having considered the pleadings filed herein, the pretrial stipulations of the parties, the pretrial depositions and the oral testimony of the witnesses for the parties which was presented at trial, the exhibits introduced by the parties, the memoranda of the parties, and being otherwise fully advised in the premises, hereby enters the following Findings of Fact and Conclusions of Law:

Plaintiffs were the owners of a Constellation model L-1049H aircraft, registration number N-6936C. On June 22, 1967, the L-1049H was on an IFR flight plan from Clark Air Base, Philippine Islands, to Tan Son Nhut Air Base, Republic of Vietnam. It was operating under a United States Military Airlift Command contract and had on board general cargo, four crew members and three passengers.

On the same date, a United States Air Force aircraft, an RF-4C, SN 65-861, with Captain Arthur T. Dardeau as aircraft commander and First Lieutenant Albert L. Lundell as navigator had been on a reconnaissance mission in South Vietnam.

At approximately 9:15 PM local time on June 22, 1967, plaintiffs' L-1049H was on approach to land at runway 25L at Tan Son Nhut Air Base and the USAF RF-4C was returning from its reconnaissance mission and was on initial approach to Tan Son Nhut. At that time, at an altitude of approximately 2,000 feet, about 3.5 statute miles from the approach end of runway 25L at Tan Son Nhut Air Base, the L-1049H was struck in the rear, in its middle vertical stabilizer, by the underside of the forward fuselage of the RF-4C. The pilot and navigator of the RF-4C ejected successfully and were picked up by rescue aircraft but all those on board the plaintiffs' L-1049H were killed and the aircraft was destroyed.

This Court finds that, at the time of the collision, the wing tip lights and the red anti-collision lights of plaintiffs' L-1049H and the red anti-collision light on the RF-4C were off. It is also the finding of this Court that the aircraft commander of the RF-4C did not enter the traffic pattern at Tan Son Nhut Air Base properly and that the navigator of the RF-4C did not give his full attention to observing for other aircraft in the traffice pattern when the RF-4C was on initial approach to the air base. In addition, there were scattered clouds at 1700 to 2000 feet altitude in the vicinity of Tan Son Nhut and they caused the pilot of the RF-4C to fly below the traffic pattern altitude. Finally, this Court also finds that the radio in the RF-4C was inoperative when it was on initial approach to the air base.

On the date of the loss, June 22, 1967, plaintiffs had two insurance policies in effect covering the L-1049H, N-6936C. One was a general aviation hull insurance policy issued by Pacific Indemnity Co. (hereinafter referred to as the "all risk" policy); the other was a Non-Premium Hull War Risk Insurance Policy issued by the defendant¹ (hereinafter sometimes referred to as the "war risk" policy). The "all risk" policy excluded from its coverage what are generally referred to as "war risks." Subject to specified limitations, those "war risks" excluded from the plaintiffs' "all risk" policy were covered by the "war risk" policy.²

The basic issue that is to be decided by this Court is whether the loss of the L-1049H is covered by the insurance policy issued by the defendant. The relevant language of the government's insurance policy covering the L-1049H, the only language under which it would be possible for the plaintiffs to recover against the government for this loss, provided as follows:

This insurance covers all physical loss or damage to the (plaintiffs') aircraft . . . resulting from the risks which . . . (are) excluded from . . . (the plaintiffs') commercial Aviation Hull Policy by the following clause:

"Loss or damage due to or resulting from: . . . war . . . or warlike operations, whether there be a declaration of war or not . .."³

The primary condition for recovery under the war risk policy is that the physical loss or damage must result from a risk excluded from the plaintiffs' commercial aviation hull policy, the "all risk" policy, by the "war risk exclusion" or "free from capture and seizure" clause that was used as the government's coverage clause; basically, this means that the damage must be proximately caused by a risk of war or warlike operations. Standard Oil Company of New Jersey v. United States, 340 U.S. 54, 58, 71 S.Ct. 135, 95 L.Ed. 68 (1950), Libby, McNeill & Libby v. United States, 340 U.S. 71, 71 S.Ct. 144, 95 L.Ed. 86 (1950). The burden of proving that the loss falls within the war risk policy coverage—that the loss resulted from a war risk rather than an aviation risk—is on the plaintiffs. United States v. Standard Oil Co. of New Jersey, 178 F.2d 488, 495 (2d Cir. 1949), aff'd, 340 U.S. 54, 71 S.Ct. 135, 95 L.Ed. 68 (1950).

A better understanding of the burden plaintiffs must meet can be obtained by a closer analysis of the Standard Oil case, which involved the analogous area of marine war risk insurance. In that case, the United States had issued a war risk insurance policy covering a vessel which collided with a United States Navy minesweeper. The policy included, as its coverage clause, a war risk exclusion clause similar to the one involved in the subject litigation; its particular, relevant wording was: "loss, damage, or expense caused by or resulting from . . . all consequences of hostilities or warlike operations." 178 F.2d at 489-490. When the case reached the Supreme Court, it was held that:

(1) Losses from collisions are prima facie perils of the sea covered by standard marine risk policies. To take such a loss out of the marine policy and to bring it within the coverage of the provision insuring against "all consequences of" warlike operations, common sense dictates that there must be some causal relationship between the warlike operation and the collision . . . . In turn, the existence or nonexistence of causal connection between the peril insured against and the loss has been determined by looking to the factual situation in each case and applying the concept of "proximate cause" . . . . (Proximate cause) "refers to that cause which is most nearly and essentially connected with the loss as its efficient cause." 340 U.S. at 57-58, 71 S.Ct. at 137 (Footnotes omitted).

The Court of Appeals in the Standard Oil case was even clearer when it held that "not only must the vessel's mission be one of war, but the warlike character of its operation must be the dominant and effective cause of the resulting catastrophe." 178 F.2d at 490.

A review of the evidence in this case clearly indicates that plaintiffs have not met their burden of proof. This Court finds that neither aircraft was on a warlike operation and that, even if they were, the accident was not caused by a warlike operation. The mid-air collision and subsequent loss resulted from a peril of the air, not a peril or risk of war. As a result, recovery cannot be had under the government's war risk insurance policy.

At the time of the mid-air collision, the USAF RF-4C was returning from its reconnaissance mission and plaintiffs' L-1049H was on a United States Military Airlift Command contract flight from Clark Air Base, Philippine Islands, to Tan Son Nhut Air Base, Republic of Vietnam, carrying general cargo and three passengers. The facts do not support a conclusion that either aircraft was on a warlike operation.

The mere flight of an Air Force jet is not a warlike operation. In Meseck Towing Lines, Inc. v. Excess Ins. Co., Ltd., 77 F.Supp. 790 (E.D.N.Y.1948) the Court held that a United States Naval vessel leaving its pier with orders to proceed to patrol duty was not engaged in warlike operations. Id. at 792-793. The Court pointed out that such maneuvering was "prior to reaching an appointed war station." Id. at 793. In the present case, the RF-4C was returning from its "appointed war station," the place where it had done its reconnaissance; it was not at that station. At the time of the collision, there were no combat conditions prevalent; the evidence established that the nature of the RF-4C's operation was not warlike.

Plaintiffs have argued, however, that the United States Department of Defense has for claims and pay purposes, determined that the RF-4C was on a combat mission at the time of the loss. It is apparently their position that "combat mission" would be within the meaning of "warlike operation." Assuming this to be so, it must be stressed that there were specific administrative purposes for which that Department of Defense definition was established; it cannot bind the government in other areas. The insurance language in question was drafted by different individuals with a different intent and purpose; it does not relate to the administrative purposes of the Department of Defense definition. Moreover, the language in question is based on non-governmental, commercial insurance language. Before coverage could be placed under the government's policy, plaintiffs would first have to establish that the loss was excluded from the commercial "all risk" policy covering the L-1049H. Since...