Clemente v. United States

• Decision Date: 24 November 1976
• Docket Number: 779-73,999-73,Civ. No. 778-73,1000-73 and 1096-73.
• Citation: 422 F. Supp. 564
• Parties: Vera Zabala CLEMENTE et al., Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

422 F. Supp. 564

Vera Zabala CLEMENTE et al., Plaintiffs, v. The UNITED STATES of America, Defendant.

Civ. Nos. 778-73, 779-73, 999-73, 1000-73 and 1096-73.

United States District Court, D. Puerto Rico.

November 24, 1976.

Speiser, Krause & Madole, Washington, D. C., for plaintiffs.

Michael J. Pangia, Aviation Unit, U. S. Dept. of Justice, Washington, D. C., Julio Morales Sanchez, U. S. Atty., San Juan, P. R., for defendant.

OPINION AND ORDER

TORRUELLA, District Judge.

The present matter involves consolidated actions for wrongful death filed pursuant to the Federal Tort Claims Act (28 U.S.C. §§ 1346(b) and 2671 et seq.), against Defendant United States of America for the alleged negligence of employees of the Federal Aviation Administration (F.A.A.). We assume jurisdiction pursuant to said statute.

Plaintiffs are the duly qualified personal representatives and/or next of kin of decedents Roberto Clemente, Angel Lozano and Francisco Matias, all passengers who lost their lives as result of the crash of a Douglas DC-7 CF type aircraft on the evening of December 31, 1972 in Carolina, Puerto Rico. Aboard this aircraft, in addition to Plaintiffs' decedents, were Arthur S. Rivera, the owner of the airplane who was performing duties as copilot, and Jerry C. Hill, the pilot-in-command, both of whom were also killed.

The cause of this accident, and the causal link, if any, to actions or inactions of Defendant United States of America, is one of two major issues developed in this case. The second question is presented by way of Defendant's defense¹ to the effect that the conduct claimed by Plaintiffs as establishing negligence falls within the "discretionary function" exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(a).²

The aircraft in question was purchased by Mr. Rivera in Miami, Florida on July 12, 1972. It was powered by four Curtiss Wright 988, TC 18 EA 1, Model R-3350 engines, each with Hamilton Standard 34 E 60 propellers. The maximum gross take-off weight allowable for a DC-7 CF is 144,750 pounds, provided certain approved modifications are effectuated, and if a device known as an "auto-feather" is used in the particular flight.

In September, 1972 the aircraft in question was ferried from Miami to San Juan. It arrived with its No. 3 propeller "feathered."³

On December 2, 1972, while Mr. Rivera was taxiing his airplane at the San Juan International Airport, there was a loss of hydraulic power causing a malfunctioning of the brake and steering systems of the craft. As a result the airplane went off the apron into a water-filled concrete ditch. Prior to hitting the ditch power was shut off the engines by Mr. Rivera, but nevertheless the blades in No. 2 and 3 engines hit "a hard object" before coming to a stop. The following damage was caused to the aircraft: blown starboard outboard main and nose tires, damaged No. 2 and 3 propeller blades, starboard landing gear and hydraulic lines and bracket broken, No. 3 engine cooler scoop damaged.

This incident came to the attention of F.A.A. airworthiness inspector Juan Villafañe, who was at the airport investigating official matters. He questioned Mr. Rivera concerning his intentions regarding the damage to his aircraft. Mr. Rivera indicated that he would carry out the necessary repairs. Mr. Villafañe took no further action.

Another F.A.A. airworthiness inspector, Jesús Negrón Ocasio who by chance was unofficially present at the airport on the day of this incident, was assigned the investigation of this matter. Mr. Negrón Ocasio was assisted in the investigation by Vernon Haynes, an F.A.A. general aviation maintenance inspector.⁴

In the days that followed, repairs were performed by one of the decedents, Francisco Matías, together with Rafael Delgado Cintrón, both of whom were airframe and powerplant mechanics duly authorized by the F.A.A. They checked the engine mounts as well as the sump plugs and oil filters and found them to be in good condition. No indication of shaft misalignment was found. The damaged propellers were replaced by new ones and the engines then run for three hours. Both No. 2 and 3 engines operated within permissible limits, and no indication was found of engine failure or malfunction. Thereafter Messrs. Matías and Delgado Cintrón returned the aircraft to service by the signing of the maintenance logs.⁵

On December 23, 1972 a major disaster occurred in the Republic of Nicaragua in the form of a devastating earthquake. Shortly after news of this catastrophe was received in Puerto Rico, Roberto Clemente, who was a well known major league baseball player from Puerto Rico, proceeded to organize a relief committee for its victims.⁶ Mainly through Mr. Clemente's personal efforts this committee was able almost immediately to gather various emergency supplies, and within a few days of the earthquake, to airlift three airplane loads to Managua, Nicaragua.

The momentum of the relief effort was such that when the last of these flights was ready to leave on December 30th, there was more cargo available than could be loaded. At this point, Mr. Clemente, who had gone to the airport to see this flight off, was approached by Mr. Rivera.

Mr. Rivera introduced himself as the president of American Air Express Co.⁷ and as having a cargo plane available which was capable of transporting the remaining relief material to Nicaragua. Mr. Clemente inspected the cargo plane and agreed on $4,000 as the charter fee to be paid upon the return of the airplane to Puerto Rico. Mr. Rivera was to supply crew and fuel for the enterprise.⁸

Federal Air Regulations in effect at that time required that when used in a commercial operation, a DC-7 aircraft be crewed by a duly qualified pilot-in-command, copilot and flight engineer.⁹

Mr. Rivera proceeded to hire Jerry C. Hill as the pilot-in-command of the flight. Mr. Hill held an airline transport pilot's certificate issued by the F.A.A. with type ratings in DC-4, DC-6, DC-7 and C-46 aircraft and had approximately 12,440 hours of flying time, of which approximately 3,000 hours were in DC-7 type aircraft, with 2,000 hours as pilot-in-command. He had last flown a DC-7 as pilot-in-command on November 10, 1972.

Mr. Rivera decided to assume the duties of copilot for the flight. He held a commercial pilot's certificate with an instrument and single and multi-engine land airplane rating issued by the F.A.A., and a type rating in Douglas DC-3 aircraft. Mr. Rivera had approximately 1900 hours of flying time of which approximately 6 hours had been entered in DC-7 type airplanes. He was not certified by the F.A.A. to perform duties as a copilot in this type of aircraft.

Mr. Rivera attempted to seek the services of a flight engineer to accompany the flight, but was unable to do so.¹⁰

During the 30th and 31st of December, 1972 various activities preparatory to the mercy mission centered around the DC-7 at the airport. While the aircraft was loaded with the cargo, Messrs. Matias and Delgado Cintrón at various times performed last minute maintenance check-ups, including the testing of the engines and corresponding instruments.

The loading was completed on December 31st. Based upon post-accident investigation of a fuel receipt and customs declaration,¹¹ the gross take-off weight of the subject aircraft was approximately 148,943 pounds, or approximately 4,193 pounds in excess of its maximum allowable gross takeoff weight.

During the morning of December 31st, the pilot of the aircraft, Mr. Hill, filed a flight plan with the F.A.A. in San Juan.

At approximately 9:11 P.M. of that day, the aircraft with all passengers and crew aboard taxied to Runway 7 on its way to meet its fate. It had not been flown since its arrival from Miami in September.

After engine run-up by the crew, the flight was cleared for takeoff at 9:20:30 P.M. The weather was good, with visibility at 10 miles and scattered cloud cover at 2200 feet.

On takeoff, the aircraft took an exceptionally long takeoff roll and gained very little altitude. A left turn was commenced towards the North, after which, at 9:23:15 P.M., the San Juan Tower received the following transmission: "N500AE coming back around." Thereafter, the aircraft crashed into the Atlantic Ocean at a point approximately 1.5 miles off shore, and 2.5 miles on the 040 degree radial from the western end of Runway 25.¹²

The wreckage site was not discovered until January 4, 1973 due to extremely rough surface conditions and poor underwater visibility.

On or after January 7th, divers from a United States Navy ship reported that the aircraft wreckage was scattered throughout the bottom the the ocean at a depth of 100 to 130 feet, in an area of approximately 4 acres. The aircraft was broken into several sections, most of them badly crushed or demolished. Both wings were separated from the fuselage. The cockpit area forward of the main junction box was destroyed and the instrument panel and mechanical controls missing. The nose gear assembly was retracted. All four engines were accounted for, but none of them were found attached to the wing structure. Two of the engines were together at a distance of approximately 200 feet from the right wing, which itself was upside down on the left side of a fuselage section.

Three of the engines were in fact recovered from the ocean floor on January 11, 1973. Among the engines recovered were Nos. 2 and 3.¹³ The propeller of the No. 2 engine was "feathered" thus indicating that there had been engine failure at some point before the crash. The magnetic sump plug of No. 3 engine had pieces of broken cylinder rings, however, the rings were found intact in the cylinders of this engine.

Plaintiffs' theory of recovery is that pursuant to the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., and the regulations and orders promulgated thereunder, the F.A.A. owed a duty to Plaintiffs and Plaintiffs' decedents to promote flight safety, which duty was breached by the...