Berner v. British Commonwealth Pacific Airlines, Ltd.
| Decision Date | 28 June 1963 |
| Citation | 219 F. Supp. 289 |
| Parties | T. Roland BERNER and Arthur S. Lesser, Executors of the Estate of William Kapell, deceased, Plaintiffs, v. BRITISH COMMONWEALTH PACIFIC AIRLINES, LTD., a Foreign Corp., and British Commonwealth Pacific Airlines, Ltd., now doing business as Qantas Empire Aviation, Ltd., a Foreign Corp., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Belli, Ashe & Gerry, by Melvin M. Belli, and Richard F. Gerry, San Francisco, Cal., and T. Roland Berner, by Sidney Bender, M. Victor Leventritt, New York City, for plaintiffs.
Condon & Forsyth, by Austin Magner, and George N. Tompkins, Jr., New York City, Wallace & Parker, by Charles F. Parker, San Francisco, Cal., for defendants.
Before RITTER, District Judge.
A Douglas DC-6, VHBPE, owned and operated by British Commonwealth Pacific Airlines, Ltd. (BCPA), crashed near Half Moon Bay, California, at approximately 0844 Pacific Standard Time, October 29, 1953. The aircraft was destroyed by impact and subsequent fire. The eight crew members and eleven passengers were killed. Plaintiffs' testate, William Kapell, was one of those passengers.
This action is brought to recover damages for the death of William Kapell. It was tried to the court and jury and resulted in a verdict for the defendants, no cause of action.
The plaintiffs have moved the court, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure for the following relief:
(1) A directed verdict in favor of the plaintiffs on the issue of liability, and a new trial, limited to the issue of damages only.
(2) Judgment non obstante veredicto for the plaintiffs on the issue of liability, and a new trial, limited to the issue of damages only.
(3) A new trial on all issues.
The issues presented by the foregoing motions, of course, require for their determination an examination of all of the evidence.1
Since this was an international flight, and there was a contract of carriage between the deceased and the airline, the provisions of the Warsaw Convention2 govern.
The flight was scheduled between Sydney, Australia, and San Francisco, California, with intermediate stops at Nandy, Figi Island, Canton Island, and Honolulu, T. H.
The flight to Honolulu was without incident, and the pilot who flew the aircraft during this entire period stated that the aircraft was normal in all respects.
In Honolulu a new crew came aboard after a 36 hour rest period. They were briefed on expected en route and terminal weather by U. S. Weather Bureau personnel.
The crew filed an IFR (Instrument Flight Rules) flight plan with ARTC (Air Route Traffic Control) which indicated a rhumb line course was to be flown to San Francisco, with Sacramento, California, the alternate airport. The estimated flying time of the flight was nine hours and twenty-five minutes. And, there was fuel on board for twelve hours and fifty-three minutes.
The aircraft departed Honolulu at 2259, October 28, 1953. According to company records, the gross take-off weight of the aircraft was 90,166 pounds, which was below the allowable gross take-off weight of 95,200 pounds, and the load was distributed properly with respect to the center of gravity of the aircraft.
Propeller difficulty reported shortly after take-off from Honolulu probably had no bearing on this accident. The trouble was reported by the flight to have been eliminated, and no further reference was made to it in the numerous communications throughout the extensive flight. No claim for it has been made by defense counsel.
No reference in those numerous communications was made to any trouble of any kind. ). The flight from Honolulu to Half Moon Bay fan marker was uneventful.
As the flight proceeded across the Pacific Ocean, from Honolulu to San Francisco, hourly routine position reports were made to OFACS (Overseas Foreign Aeronautical Communication Station), to Honolulu before the aircraft reached the half-way point, 138 degrees west longitude, and to San Francisco after that point was passed.
The chief, at the time of the accident, of the Air Route Traffic Control Center at Oakland—a federal government agency to provide air traffic separation to en route aircraft—testified:
We communicated with aircraft over the ocean in 1953 in this fashion: The crew aboard the airplane would report by code ordinarily to a CAA communications facility which was located at San Francisco Airport. This report would be copied by the communicator and immediately telephoned to the Oakland Traffic Control Center. If we had advice or clearance for the aircraft, the procedure would be reversed. We would call the CAA communication station in San Francisco. They would copy the clearance, call the pilot by radio-telephone, and deliver it.
When an airplane received a message from the San Francisco overseas radio, the plane acknowledged receipt of the message. It was the custom and practice, though there was nothing on the messages to indicate whether or not such acknowledgment was made in each case.
In 1953 we didn't communicate directly with any aircraft. Oakland Traffic Control followed the plane in from 138 west. The Traffic Control Center releases jurisdiction of an inbound flight to the destination tower fifteen to twenty-five miles away from the airport. In this particular instance, as I recall, the traffic control responsibility was changed over at Half Moon Bay.
Ordinarily we would clear him to a fix called the approach control holding fix, which at the time of this incident was the outer marker of the ILS system, and, as I recall, this aircraft was cleared to that fix.
The route specified was Half Moon Bay direct to the outer marker, as I recall.
The altitude was given, at least 500 feet on top.
At 0550 Pacific Standard Time, the flight sent the following message:
This report indicated there was no trouble, and that the crew thought the flight was going to continue according to schedule, as it had all the way across from Honolulu. And, of course, as it did until it arrived at Half Moon Bay.
Communications to and from the flight were changed from code to voice after that message.
In answer to a request from the flight, San Francisco ARTC (Air Route Traffic Control Center at Oakland), at 0807, Pacific Standard Time, cleared it to descend in accordance with Visual Flight Rules and to "Maintain at least 500 on top" of the clouds. This was by voice contact with the flight.
The flight reported that it was starting descent at 0815, and at that time was given the San Francisco 0800 weather:
"Measured ceiling 1,200 feet, broken, visibility nine statute miles, temperature 54, dew point 50, wind west 12 knots and altimeter 30.13."
This, also was by voice contact with the flight.
As the aircraft approached the California coast, Western Air Defense Force Radar identification zone personnel, "Sliphorn", located at Mount Tamalpais, ordered it to execute the check turn, which it did. It was thought there might be foreign aircraft flying near our coast at that time. The check turn was executed between 150 miles out and 60 miles out. It was identified and released from corridor assignment at 0821 Pacific Standard Time. Both of these communications, again, were by voice contact with the flight.
Western Air Defense Force Radar personnel reported the position of this BCPA aircraft 0821, Pacific Standard Time, at 36 degrees 38 minutes north, one hundred twenty three degrees 31 minutes west. Within a minute or two of that time, the aircraft reported its ground speed at 225 knots and estimated its arrival over SFO at 0840 and at the blocks at 0850.
There was a definite fix on her at 0821. At that time, eighteen minutes before the pilot reported over Half Moon Bay, the flight was about 70 miles off the coast.
At 0827, Pacific Standard Time, Air Route Traffic Control Center transmitted to this aircraft through OFACS (Overseas Foreign Aeronautical Communication Station) the following clearance:
This message, also, was by voice contact with the flight. Moreover, it was acknowledged and repeated back by the flight.
At this time the Air Route Traffic Control Center at Oakland estimated the arrival of the BCPA aircraft at the San Francisco outer marker at 0849, Pacific Standard Time.
In its 0827 clearance ARTC transferred control of the flight to San Francisco Approach Control. It was the custom for the flight on crossing the coastline to transfer to San Francisco Approach Control pursuant to the terms of such clearance.
At 0839, the flight called San Francisco Approach Control on 3105 kilocycles, identified itself as "Air Pacific Echo" and advised that it was over Half Moon Bay, 500 on top and was listening on 278 kilocycles.3
Approach Control acknowledged, and repeated, the pilot's report over Half Moon Bay, and sent a clearance all in one transmission:
"A-P-E, San Francisco Approach Control, Half Moon Bay three nine at least five hundred on top; cleared for an ILS approach to the airport, Runway two eight right, wind west one five; cross the outer marker initial(ly) at least five hundred on top, report when inbound; ceiling one thousand two hundred, visibility nine, altimeter 30.14, over."
That message also, was by voice contact with the flight, was acknowledged by the flight and repeated back.
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Berner v. British Commonwealth Pacific Airlines, Ltd.
...only as to damages. He also ordered a conditional new trial on all issues if the judgment n. o. v. were reversed on appeal. 219 F. Supp. 289 (S.D.N.Y.1963). Defendants object to both After a trial in 1964 before Judge McLean a jury found damages of $924,396. Plaintiff moved for the addition......
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Berner v. British Commonwealth Pacific Airlines, Ltd.
...in which Kapell was a passenger.1 On June 28, 1963 Judge Ritter directed a verdict for plaintiffs on the issue of liability (219 F.Supp. 289 (S.D.N.Y. 1963)). The issue of the amount of plaintiffs' damage was thereafter tried before me and resulted in a jury verdict in favor of plaintiffs i......