Hubschman v. Antilles Airboats, Inc.

• Decision Date: 06 October 1977
• Docket Number: Civ. No. 73-341,74-640.
• Citation: 440 F. Supp. 828
• Parties: George H. HUBSCHMAN and Patricia L. Hubschman, Plaintiffs, v. ANTILLES AIRBOATS, INC. and Caribbean Flying Boats, Inc., Defendants. In the Matter of the complaint of ANTILLES AIRBOATS, INC., a Virgin Islands Corporation, and Caribbean Flying Boats, Inc., a Foreign Corporation, for exoneration from, or limitation of, liability as Lessee-Charterer and owner respectively of one Grumman "Goose" Aircraft, Model G21A, Serial No. 141, Registration No. 703A, Plaintiffs, v. George H. HUBSCHMAN and Patricia L. Hubschman, Defendants.
• Court: U.S. District Court — Virgin Islands

440 F. Supp. 828

George H. HUBSCHMAN and Patricia L. Hubschman, Plaintiffs, v. ANTILLES AIRBOATS, INC. and Caribbean Flying Boats, Inc., Defendants.

In the Matter of the complaint of ANTILLES AIRBOATS, INC., a Virgin Islands Corporation, and Caribbean Flying Boats, Inc., a Foreign Corporation, for exoneration from, or limitation of, liability as Lessee-Charterer and owner respectively of one Grumman "Goose" Aircraft, Model G21A, Serial No. 141, Registration No. 703A, Plaintiffs, v. George H. HUBSCHMAN and Patricia L. Hubschman, Defendants.

Civ. Nos. 73-341, 74-640.

District Court, Virgin Islands, D. St. Thomas and St. John.

October 6, 1977.

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Isherwood, Colianni, Alkon & Barnard, Christiansted, St. Croix, V. I., Thomas Alkon, Christiansted, St. Croix, V. I., of counsel; Riddle, Murphrey, O'Quinn & Cannon, Houston, Tex., John B. Murphrey, Houston, Tex., of counsel for plaintiffs.

Howard K. Gibbs, Charlotte Amalie, St. Thomas, V. I., for defendant, Antilles Airboats, Inc.

Birch, DeJongh & Farrelly, Charlotte Amalie, St. Thomas, V. I., Alexander A. Farrelly, Charlotte Amalie, St. Thomas, V. I., of counsel, Maria Tankenson Hodge, Charlotte Amalie, St. Thomas, V. I., for defendant, Caribbean Flying Boats, Inc.

OPINION

ACTION FOR DAMAGES FOR PERSONAL INJURIES IN ADMIRALTY

CHRISTIAN, Chief Judge.

This is an action in Admiralty, stating claims for damages growing out of personal injuries suffered, for punitive damages, and for loss of consortium.

Plaintiff, George Hubschman, fifty years of age at the time of trial, on June 15, 1976, was then, as he now is, an attorney at law. He is presently a practicing member of the Virgin Islands Bar. Between the years 1968 and 1971, however, he earned his livelihood as a seaplane pilot, flying in the employ of defendant, Antilles Airboats, Inc. (hereinafter sometimes Antilles).

Defendant, Antilles Airboats, Inc., is a duly organized Virgin Islands Corporation. Its principal business, if not indeed its sole business, is flying passengers, mail and some freight between the islands of the United States Virgin Islands and the British Virgin Islands, and between the United States Virgin Islands and the Commonwealth of Puerto Rico. In this endeavor it utilizes chiefly aircraft manufactured by the Grumman Aerospace Corporation. The model most used in Antilles' Service is the G21A, widely known as the "goose". This is not a late model aircraft. More accurately this twin engine amphibian would be described as a vintage seaplane, having been first manufactured going on some forty years ago. As to the equipment it flies, Antilles owns some; others it leases.

Caribbean Flying Boats, Inc., (hereinafter sometimes Caribbean) the other defendant, is likewise a corporation organized under the laws of the Virgin Islands. It was brought into being solely as a vehicle for purchasing flying boats and leasing them to Antilles. Although these two defendants in their dealings with each other have striven to keep their business transactions letter perfect, one thing cannot be gainsaid. A common element serves, to some extent, to keep them firmly bound, the one to the other; they share the expertise, guidance, services and executive direction of Captain Charles F. Blair, retired Senior Pan American World Airways Pilot, Aviator of universal renown, and founder of both corporate entities.

The particular aircraft of the Antilles' fleet with which we are here concerned, is a G21A model (goose) No.N703A. All references to it hereafter will be 703A.

703A was one of two flying boats acquired by Caribbean for letting to Antilles. This goose was purchased by Caribbean on February 20, 1970. It seems that the plane was immediately turned over to Antilles and put in service. 703A was secured with the St. Thomas to Fajardo, Puerto Rico run in mind. For about two months the rental was on a month to month basis. This was formalized with a written and signed contract of lease on April 14, 1970.

On June 18, 1971, plaintiff, Hubschman, was the pilot assigned to the St. Thomas?€”Fajardo flight. 703A was the plane designated for that route. Sometime during the morning of that day, Hubschman made an uneventful round trip flight. Before take off, plaintiff went through the prescribed pre-flight checks. It is significant that at that time, all pilots were required to start their engines with what is known as the cross feed valve in the "off" position. For take off and in flight, however, the standing operating procedure called for the cross feed valve to be in the "on" position. Nothing untoward was noted as the amphibian was pre-flighted and, as before indicated, a successful round trip was made. Once in the air, Hubschman noted that his "air speed indicator" was not functioning properly. Upon his return to St. Thomas, therefore, he reported this to maintenance and asked that it be rectified.

Work was done on the air speed indicator. Thereafter, plaintiff and a mechanic, took the plane for a short test flight. As a result of this Hubschman, it seems, was satisfied that no serious problem was presented, even though the indicator was not functioning in "A-1" condition. The plane was then left standing on the ramp to await its next flight to Fajardo, scheduled to leave St. Thomas at 3:47 p. m.

Departure time for the 3:47 flight arrived and plaintiff boarded his aircraft with ten passengers, a capacity passenger load. Because of the length of time the plane had been on the ground, Captain Hubschman once again went through his pre-flight routine. Previous to boarding the plane he had made certain that his plane had been properly fueled, 60 gallons in the right tank, 20 in the left. Since all systems were "go" Hubschman guided the goose into the water and took off.

The flight altitude, 800 feet, was achieved. As the flight progressed, plaintiff checked his various meters, dials and gauges from time to time. All was going well, his course to Fajardo was properly set and Captain and passengers settled down for what promised to be a pleasant, scenic, but otherwise undramatic crossing. Then suddenly, ten to fifteen minutes into the flight, and without any warning whatsoever, both engines stopped dead. Hubschman immediately switched his fuel supply from his right to his left tank. About simultaneously therewith, the plaintiff began to operate his "wobble pump".¹ He gained a restart of his engines but this lasted, at most, five seconds after which both engines quit again. Desperation now setting in, plaintiff quickly set his fuel selector to both tanks and kept his wobble pump going, all to no avail. Faced now with an apparently irrecoverable twin engine failure, Hubschman seized his microphone, put in a hurried distress (May Day) call, dropped the microphone on the floor, and went back to his wobble pump, but with no more success than before. Convinced now that a restart was not likely, by this time having lost much of his altitude, and with scant seconds to spare, Hubschman decided he had to make an open sea landing. He chose his landing spot and brought the plane down on the water.

703A was brought down a few miles northeast of the Puerto Rican Island of Culebra. It is in this area where the landing took place that the Atlantic Ocean and the Caribbean Sea come together. Because of this confluence, the waters are described as "confused seas". Other than being described as "confused" or "checker board" it does not appear that the sea on this day was in any way remarkable. The swells were described in terms of a few feet high. It is undisputed that given a structurally sound aircraft, and proper piloting, a safe and proper landing could have been effected.

As it developed in this instance, 703A broke apart somewhere in the nose area, and after remaining afloat five to ten minutes, went down to the bottom. It has never been recovered. Its pilot, the plaintiff, and eight of the ten passengers survived. The two passengers who were lost were last seen on the wing, or some other part of the plane. Though ordered by the Captain to jump into the water as the plane would sink with them, they, for whatever reason, did not heed the injunction.

So far, what has been narrated are findings on incontroverted evidence. The contending positions come to the fore when we come to the manner in which the plane was landed, and what caused the shearing off of the nose section, with the ultimate total loss of this goose.

Plaintiff testified that in choosing his landing site, he made an appropriate selection. He says he made a landing parallel to the swells, and with a favoring wind. Despite some skipping and bouncing after he had made contact with the water, plaintiff insists that he landed the plane properly. So much so that he thought he was "home free". Unfortunately, he claims, the left float of his plane was caught by a swell coming in from the left. This, Hubschman says, caused the plane to turn to the left, and into a wave at which latter contact the nose broke off, and he was catapulted through the aperture thus created 100 feet into the sea. Plaintiff claims that he landed the aircraft right side up and that it so remained until it sank.

Defendants lay the blame for the destruction and loss of the plane to what they consider a grave pilot error. Pointing to some unquestioned confusion in Hubschman's statement about the direction in which he had landed, confusion heightened somewhat by plaintiff's indication on a map in open court of the direction in which he had touched down the plane they vehemently assert that Hubschman had landed the seaplane in a "suicidal" direction, right into the swells, with the result that the plane broke up, flipped over, bottom side up, and sank. In saying that the plane had flipped over on its back, defendants rely on the statements of some of the passengers who do so maintain.

For the time being, I pass over this conflict in the evidence. My...