Hornsby v. Fishmeal Company, Civ. A. No. 12745

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
• Writing for the Court: Hall, Raggio, Farrar & Barnett, Lake Charles, La., for defendants
• Citation: 285 F. Supp. 990
• Parties: Mrs. Barbara Jean HORNSBY, Individually and as guardian of minor, Jennifer Leigh Hornsby, and as Administratrix of Estate of Roy E. Hornsby v. The FISHMEAL COMPANY and Gulf Menhaden Company, Inc., and Firemen's Fund Insurance Company, Intervenor. Jeraldine Fruge WILLIAMS, Individually and as Tutrix of Minors, Charles Edward Williams III, Michael Roy Williams, and Kim Lee Williams v. LOUISIANA MENHADEN COMPANY, Inc., Wallace-Menhaden Products, Inc., Associated Aviation Underwriters, and United States Fidelity & Guaranty Company, Intervenor. GULF MENHADEN COMPANY, Inc. and United States Aviation Underwriters, Inc. v. WALLACE-MENHADEN PRODUCTS, Inc., Louisiana Menhaden Company, Inc., and the American Insurance Company.
• Docket Number: 12843,13090.,Civ. A. No. 12745
• Decision Date: 10 June 1968

285 F. Supp. 990

Mrs. Barbara Jean HORNSBY, Individually and as guardian of minor, Jennifer Leigh Hornsby, and as Administratrix of Estate of Roy E. Hornsby
v.
The FISHMEAL COMPANY and Gulf Menhaden Company, Inc., and Firemen's Fund Insurance Company, Intervenor.
Jeraldine Fruge WILLIAMS, Individually and as Tutrix of Minors, Charles Edward Williams III, Michael Roy Williams, and Kim Lee Williams
v.
LOUISIANA MENHADEN COMPANY, Inc., Wallace-Menhaden Products, Inc., Associated Aviation Underwriters, and United States Fidelity & Guaranty Company, Intervenor.
GULF MENHADEN COMPANY, Inc. and United States Aviation Underwriters, Inc.
v.
WALLACE-MENHADEN PRODUCTS, Inc., Louisiana Menhaden Company, Inc., and the American Insurance Company.

Civ. A. Nos. 12745, 12843, 13090.

United States District Court W. D. Louisiana, Lake Charles Division.

June 5, 1968.

As Amended June 10, 1968.

No. 12745: Jones & Jones, Cameron, La., Fromkin & Fromkin, Omaha, Neb., for plaintiffs.

Hall, Raggio, Farrar & Barnett, Lake Charles, La., for defendants.

Plauché & Plauché, Lake Charles, La., for intervenor.

No. 12843: Payton R. Covington, Lake Charles, La., for plaintiffs.

Christovich & Kearney, New Orleans, La., for defendants.

Hall, Raggio, Farrar & Barnett, Lake Charles, La., L. B. Ullstrom, Denver, Colo., for intervenor.

No. 13090: Hall, Raggio, Farrar & Barnett, Lake Charles, La., L. B. Ullstrom, Denver, Colo., for plaintiffs.

285 F. Supp. 991

Christovich & Kearney, New Orleans, La., for defendants.

EDWIN F. HUNTER, Jr., District Judge.

These cases concern a midair collision of two light aircraft. The collision occurred over the Gulf of Mexico within one marine league of the Louisiana shore at approximately 6:50 P.M. on July 25, 1966. At the time of the collision the weather was clear. The visibility and ceiling were unlimited, and the wind was calm. As a result of the impact, both planes and the pilot of each crashed into the Gulf near the Louisiana shore. There were no survivors.

Early each morning these fish-spotting pilots take off from landbased fields near the Menhaden factories in Cameron, Louisiana. They fly out to sea and scan the Louisiana and Texas coastal waters to locate schools of fish. When a pilot spots fish he radios the boats of his company. These boats proceed, under the directions of the pilot, to the scene. The pilots direct the maneuver of the large boats to the fish and the purse boats as to when to circle, let out nets, drop nets, etc.

The plaintiff in No. 12745 is Mrs. Barbara Jean Hornsby, who seeks to recover damage for the death of her husband, Roy Hornsby. The defendant is The Fishmeal Company, the owner and operator of the plane which was being operated by Charles Williams. The plaintiff in No. 12843 is Mrs. Geraldine Fruge Williams, who seeks to recover for the death of her husband, Charles Williams; the defendant is Louisiana Menhaden Company, Inc., the owner and operator of the plane which was being operated by Roy Hornsby. The third suit involves a property claim for the value of the aircraft.

Candor requires agreement that we do not know, for sure, what happened. We shall never know. There is no clear, positive and decisive answer. The two pilots are dead. There was one eye witness, but his testimony is inconsistent and of little value. He was on one of the fishing boats far below. The Court's duty is to select from the conflicting inferences and conclusions those which I consider most reasonable. Each side argues with vigor that this tragedy was caused solely and exclusively by the negligence of the other. Mrs. Hornsby insists that under 14 C.F.R. 91.67E her husband had the right-of-way whether he was descending, ascending, or in a fixed orbit. This is true, she says, because her husband's aircraft was being "overtaken," and that a pilot in an overtaking aircraft must alter course to the right to pass well clear. Mrs. Williams asserts, among other things, that the sole cause of this accident was the patent negligence of Hornsby. Her counsel refers to Hornsby as "the Red Baron diving from the Western sun."

We will make specific findings, but before doing so, perhaps it is appropriate to comment on the confident assertion made by each defendant: "Judge, surely our opponents have not proven any negligence on our clients." There is some merit in this contention. If we accepted it, we would just dismiss all law suits and let it go at that. However, it defies common sense and understanding to believe that two small planes could crash in midair (right wing to right wing) without someone being at fault. We discard at the outset the proposition that no one was at fault. One or both were at fault.

In line with the recognized principle that, in the absence of any statute to the contrary, the general rules governing tort liability and negligence apply in aircraft accident cases,¹ the courts have determined the issues of liability, by the ordinary rules of negligence and air traffic regulations.² We proceed to findings of

285 F. Supp. 992

fact and the issues of negligence and causation

FINDINGS OF FACT

1. The midair collision occurred on or about July 25, 1966 within the territorial waters of the State of Louisiana at approximately 6:50 P.M. o'clock.

2. At all pertinent times Charles Williams was the pilot and sole occupant of The Fishmeal Company airplane, being a Piper Model PA-18A, hereafter called the Williams plane.

3. At all pertinent times, Roy E. Hornsby was the pilot and sole occupant of the Louisiana Menhaden Piper plane, hereinafter referred to as the Hornsby plane.

4. At all times pertinent, Hornsby and Williams were in the course and scope of their employment as pilot fish spotters with their respective companies who were in competition with each other. On the aforesaid date, time and place, the planes collided in midair, right wing to right wing. The aircraft and pilots crashed into the sea. The pilots were killed.

5. We find that Hornsby was negligent in five respects, as follows:

A. He violated 14 CFR 91.65(a) in operating his aircraft "so close to another aircraft as to create a collision hazard."

B. He violated 14 CFR 91.67(d) in failing to alter his course to the right when approaching the Williams aircraft head-on, or nearly so.

C. In failing to communicate with the other pilots in the vicinity and telling them that he was going to descend to 2,000 feet.

D. In neglecting to answer the radio calls of Mike Boyette and Cecil Ugas on the VHF radio.

E. He knew or should have known that the greatest likelihood of an accident would come from the precise direction that Williams was flying (into the sun). He should have anticipated this possibility and should have made a thorough surveillance of that area his prime concern.

6. Each of the above recited acts of negligence by Roy Hornsby was a proximate cause of the collision and contributed to it to the extent of 50%.

7. We find Roy Williams negligent in six respects as follows:

A. He knew that Hornsby was to be reckoned with. He had contacted his chief pilot, Cecil Ugas, who was in the area, by intra-company radio, requesting that Hornsby be advised that he, Williams, was in the process of taking over the 2000-foot level. This message was never transmitted to Hornsby and Williams was never cleared to the 2000-foot level of altitude. Williams' aircraft, unlike all others involved here, was not equipped with VHF radio. It was for this reason that he could not communicate directly with Hornsby, who, like all the others, had a VHF radio. He was negligent in attempting to take over the 2000 foot level without first getting an affirmance that Hornsby had been advised of the maneuver.

B. His aircraft was not equipped with anti-collision lights which serve to give an added indication to other pilots of the presence of an aircraft in flight.

C. He violated 14 CFR 91.67(d) in failing to alter his course to the right when approaching the Hornsby aircraft head-on, or nearly so.

D. He violated 14 CFR 91.65(a) in operating his "aircraft so close to another aircraft as to create a collision hazard."

E. He was negligent in operating an aircraft without proper and sufficient equipment, in that he had no means of communicating directly with aircraft other than those of his own employer.

F. He knew or should have known that there was a great likelihood that Hornsby was in the precise area and he should have anticipated the possibility

285 F. Supp. 993

and should have made a thorough surveillance of that area and altitude his prime concern. He obviously did not do this.

8. Each of the above recited acts of negligence of Charles Williams was a proximate cause of the collision and contributed to it to the extent of 50%.

THE LAW

Tort claims arising out of the collision of land based aircraft on navigable waters within the territorial waters of a state are cognizable in Admiralty. Weinstein v. Eastern Airlines, Inc., 316 F.2d 758 (3rd Cir., 1963). Congress has enacted legislation providing actions for wrongful death in a limited number of maritime situations, but these statutory enactments are not applicable.³ If, as here, the accident takes place within the territorial waters of a state, Admiralty recognizes and applies the wrongful death action of that state.⁴ What this Court said in Grigsby v. Coastal Marine Service, 235 F.Supp. 97, is applicable here:

"Plaintiff strenuously contends that maritime substantive law should be applied and that the State Wrongful Death statute be relegated to the role of remedy. This is precisely the view shared by the dissenters in Tungus. These dissenters have noted their continued disagreement and have specifically reserved their position that Tungus should be overturned (Hess v. United States, 361 U.S. 314, 316, 80 S. Ct. 341, 4 L.Ed.2d 305). We question the present legal import of Tungus, in view of what Mr. Justice Whittaker, who was one of the majority of five in Tungus, had to say in Hess and

...