Baker v. United States, Civ. No. 7734 and 143-72C2.
| Decision Date | 02 January 1975 |
| Docket Number | Civ. No. 7734 and 143-72C2. |
| Citation | 417 F. Supp. 471 |
| Parties | Mary Lou BAKER, Plaintiff, v. UNITED STATES of America, Defendant. Jeffrey J. MIDDLETON et al., Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Washington |
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Arnold I. Bennigson, Law Offices of Floyd A. Demanes, Burlingame, Cal., for plaintiff Baker.
Raymond J. Arata, Jr., Boccardo, Blum, Lull, Niland, Teerlink & Bell, San Francisco, Cal., for plaintiffs Middleton.
John R. Harrison, Dept. of Justice, Civ. Div., Aviation Unit, Torts Section, Washington, D. C., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing cases were tried, to the court, consuming ten trial days, more than seven years after initiation of the law suits, and more than nine years after happening of the accident out of which they arose. Plaintiffs' causes of action arose when an Aaxico Airlines DC-6 aircraft, No. N6541C, crashed into Mt. Rainier, southeast of Seattle, Washington, on April 23, 1965. The actions were brought pursuant to the Federal Tort Claims Act, 28 U.S.C., § 1346 et seq., which is within the jurisdiction of this court.1
1. Aaxico Airlines, Inc., was a supplemental air carrier properly certified to conduct non-scheduled flight operations for the carriage of cargo or passengers, for compensation or hire, in air commerce or air transportation. Aircraft N6541C, a Douglas DC-6-6A, was operated in the carriage of cargo pursuant to a military contract and used the call sign "Logair 41C".
2. The aircraft landed at McChord Air Force Base, Washington, completing a prior segment of flight at approximately 11:18 a. m. on April 23, 1965. Subsequent flight planning involved a short flight, direct to Boeing Field, Seattle, Washington, with an hour and a half operation and refueling stop, thereafter to Hill Air Force Base, Ogden, Utah, via a flight plan route which included a V4 (Seattle VORTAC 102° radial) to Burley, V101 Ogden direct to Hill Air Force Base. The flight plan filed by the captain, Alvin Petry, was on a Form DD-175. The military flight plan was filed with the Military Air Transport Service Operations at McChord Air Force Base. Shortly after Logair 41C landed at McChord Air Force Base, an individual identifying himself as a pilot on the Logair Aircraft called Basil Pepper, the Base weather station forecaster, and inquired if it would be possible to go VFR (Visual Flight Rules) from McChord Air Force Base to Boeing Field and then to Hill Air Force Base, Ogden, Utah. The caller was advised that over western Washington the general condition was 4000 scattered, 25000 broken cirrus and forecast to remain the same until 2:00 p. m. Then middle clouds at about 9 — 10,000 would appear and increase the remainder of the afternoon and slowly lower. Most of the Cascade Mountains to Pendleton, Oregon, there would be cirrus only, bases 25,000. Pepper also advised the pilot that the forecast winds at 3000 feet, to Boeing Field, were from 200° at 10 knots and from Boeing to Pendleton at 10,000 feet from 240° 5 to 10 knots. The pilot of Logair 41C was required by regulations, 14 C.F.R. 42.303, and by the air carrier, to certify, and did so certify within 60 days of the flight, that he was knowledgeable and had studied as to the subject route and airport:
3. Plaintiffs' decedents were flight engineers aboard the aircraft who were not trained for, nor responsible for, any navigational duties.
4. The aircraft departed from McChord Air Force Base at approximately 12:30 p. m., and arrived at Boeing Field at approximately 12:40 p. m. There is no evidence that the flight crew requested additional weather information prior to departure, when on the ground, or after departure, from Boeing Field, or through the Flight Service Station. Weather information is available at Flight Service Stations at all times and may be obtained by airborne aircraft, by radio. There is no aeronautical weather reporting facility at Mt. Rainier. There were clouds along the flights filed route, or actual route following departure from Boeing Field.
5. The flight was cleared for takeoff and departed Boeing Field on Runway 13 (magnetic heading approximately 130°) at between approximately 2:05 or 2:06 p. m. enroute to Hill Air Force Base. It was on a VFR flight plan at the time of departure. Aaxico Airlines prescribed a VFR route from Boeing Field to Hill Air Force Base which incorporated, inter alia, V4 airway to Yakima, Washington. It was the policy of Aaxico Airlines that its routes be flown VFR whenever practicable, reasonable, safe and efficient. Under Aaxico policy, it was the responsibility of the pilot operating VFR to maintain his own clearance of clouds, aircraft or obstructions, even if monitored by radar. The flight required no air traffic control clearance to fly VFR (pursuant to visual flight rules). The estimated time enroute from Boeing Field, to Hill, according to the flight plan was two hours plus thirty minutes.
6. There is no evidence that the aircraft, or its component parts, were inoperative or malfunctioning. The gross weight and center of gravity of Logair 41C, upon departure from Boeing Field, were within allowable limits. It was equipped with two very high frequency (VHF) navigation receivers which are used for navigation and which were found tuned, after the accident, to the Seattle VOR. After the accident, the VHF navigational receivers portrayed information that established the aircraft's position, at the time of the crash, to be on approximately 125° radial of the Seattle VOR. The aircraft was also equipped with distance measuring equipment (DME) which was found, after the crash, indicating the distance of the aircraft from the Seattle VOR as approximately 40.2 miles. The crew of Logair 41C possessed airway charts pertinent to the proposed route of flight. The Seattle airway navigation charts did not depict the location of Mt. Rainier. The Seattle area sectional chart depicted the location of Mt. Rainier (U.S. Exhibit 5).
7. Plaintiffs' factual and legal contentions concerned the performance, or the non-performance, of air traffic control duties and responsibilities. The essential facts, also admitted, included identification of the facilities involved in handling the flight, the personnel, and the times and content of communications which follow. At the Flight Service Station, specialist John Dodson was operating the inflight position from 8:00 a. m. to approximately 2:05 p. m. and from approximately 2:15 p. m. to 4:00 p. m. Assistant Flight Service Station specialist, Eugene Wells, was operating the inflight position from approximately 2:05 p. m. to approximately 2:15 p. m. Air traffic control specialist, Clifford Fay, was operating the D-2 (data) position at the Seattle Air Route Traffic Control Center (ARTCC) from 2:02 p. m. to 3:06 p. m. Kenneth Rose was an air traffic control specialist at the center and was operating the R2 (radar) position from 2:02 p. m. to 2:55 p. m. Charles Schultz was an air traffic control specialist at the center and was operating the D-1 (data) position from 1:14 to 3:57. John Waldorf was an air traffic control specialist at the center and was operating R-1 (radar) position from 12:43 p. m. to 3:59 p. m.
8. The communications (radio) between the aircraft and the station were not recorded. All known communications (land line) between the station and the center were recorded. All known communications between the aircraft and the center were recorded.
9. Richard Keefe, who was the watch supervisor at the Flight Service Station from 8:00 a. m. to 4:00 p. m. received, at 12:44 p. m., a flight plan from McChord on Logair 41C which he wrote on a Form 398 flight plan at Logair 41C was a DC-6 aircraft, departing Boeing Field in a VFR flight plan to Hill Air Force Base. The flight plan was given to the inflight operator, Dodson, prior to 2:05 p. m. At the time of the departure, David L. Webster was working the local control position, in the Boeing Field tower, and the time of departure was communicated, on the interphone, from the tower to the Flight Service Station.
10. At approximately 2:11 p. m. the flight contacted the FSS inflight operator, Wells, who had relieved Dodson, and requested a radio frequency to contact center. At that time, Wells received a position report from the aircraft of 17 miles south. Wells contacted the center, sector 2D (Fay) at 2:11:36. The following were the communications between the Flight Service Station and the center:
Logair 41C contacted the center R2 position at 2:13:01 p. m. and Kenneth Rose told Logair 41C to "stand-by" at 2:13:05 p. m. The exchange, according to stipulated Plaintiffs Exhibit 11 from the transcript of the tape recorded exchange, was as follows:3
* 2213:01 41C Seattle
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