IN RE AIR CRASH DISASTER AT NEW ORLEANS, ETC.

• Decision Date: 27 June 1975
• Docket Number: M.D.L. No. 64.
• Citation: 422 F. Supp. 1166
• Parties: In re AIR CRASH DISASTER AT NEW ORLEANS (MOISANT FIELD), LOUISIANA, ON MARCH 20, 1969.
• Court: U.S. District Court — Western District of Tennessee

422 F. Supp. 1166

In re AIR CRASH DISASTER AT NEW ORLEANS (MOISANT FIELD), LOUISIANA, ON MARCH 20, 1969.

M.D.L. No. 64.

United States District Court, W. D. Tennessee, W. D.

June 27, 1975.

COPYRIGHT MATERIAL OMITTED

James D. Causey, Memphis, Tenn., Lee S. Kreindler, Alan J. Konigsberg, Stanley J. Levy, New York City, John Knox Aycock, Robert L. Dobbs, Cecil Keltner, George T. Lewis, Memphis, Tenn., for plaintiffs.

Thomas F. Turley, Jr., U.S. Atty., W.D. Tenn., W. Hickman Ewing, Jr., Asst. U.S. Atty., W.D.Tenn., Memphis, Tenn., Elliot S. Marks, Office of the Gen. Counsel, F.A.A., Washington, D.C., for defendant.

MEMORANDUM DECISION

McRAE, District Judge.

This case was brought under the Federal Tort Claims Act. Plaintiffs' causes of action arose when a DC-3 aircraft crashed at the New Orleans, Louisiana, Airport (Moisant Field) in poor visibility conditions at approximately 6:55 A.M., C.S.T., on March 20, 1969. Of the twenty-seven persons on board, sixteen were killed, including the pilot and co-pilot and Marion Leo Hayes, a pilot-employee of the corporate owner of the plane, Avion, Inc. Originally, actions for damages were commenced against the United States by the estates of twelve of the deceased passengers and by six of the injured survivors who survived the crash. Prior to trial, nine of those plaintiffs discontinued their actions against the United States due to settlements reached with Avion, Inc. The estates or survivors of nine of the deceased passengers are now the plaintiffs in the case.

Plaintiffs claim that the plane crashed as a result of the negligence of the United States, through its Federal Aviation Administration air traffic controllers. The plaintiffs claim that the air traffic controllers were negligent in that: (1) they knew but failed to advise the crew of the significant weather information that nearby Lakefront Airport was above the aircraft's landing minimums at a time when Moisant Field's reported weather was below the plane's landing minimums; (2) that the approach controller, in answers to questions asked by the pilot, gave the pilot erroneous and incomplete information about the criteria required to make a landing; and (3) that the lack of coordination between approach control and local control led to a series of messages that constituted an improper clearance and approval for the aircraft to approach and attempt to land at Moisant Field.

On the other hand, defendant denies any negligence on the part of the air traffic controllers. Alternatively, the defendant contends that no negligent act or omission on the part of the United States was a proximate cause of the crash.

Many of the facts pertaining to this accident were not disputed. The evidence included numerous admissions by the parties; documentary exhibits; the testimony of Frederick Goertz and Keith McCall, air traffic controllers on duty at the New Orleans Airport on the morning of March 20, 1969; the testimony of Dr. Kenneth Caldwell and Hugh Stanton, Jr., both surviving passengers of the crash and both of whom held private pilot's licenses; and tape recordings and transcripts of the radio transmissions between the aircraft and air traffic control facilities.

The plaintiffs offered expert testimony of Robert Rudich, an air traffic control expert, and Donald Rickert, a pilot expert. Expert testimony was introduced by the government through Edmund Burke, an air traffic control expert, and George Hay, a pilot expert.

On March 20, 1969, the DC-3 aircraft in question was owned by Avion, Inc. The aircraft was leased for this flight to William Jackson doing business as Travel Associates, of Memphis, Tennessee. Mr. Jackson leased the aircraft for the purpose of transporting on a charter flight sportsmen on a trip from Memphis, Tennessee, to Belize, British Honduras. An itinerary published before the trip indicated that the plane was to stop at New Orleans International Airport to go through customs, prior to proceeding to British Honduras. The cost of the trip was to be $175.00 per person, with the checks being payable to Travel Associates.

On the evening of March 19, 1969, the aircraft was ferried from Houston, Texas, to Memphis by Marion Leo Hayes, arriving at Memphis at approximately 6:55 P.M. The radio call sign of the aircraft was "N142D." On that evening, the aircraft departed the ramp at Memphis with Hayes and Allen Tennyson, a pilot residing in Memphis, on board. As an apparent demonstration procedure, one take-off and one landing were performed by N142D on that occasion.

Tennyson, who had been hired as pilot-in-command of the flight, had an air transport pilot's certificate and a type rating in DC-3 aircraft. However, prior to March 19, 1969, he had not flown in a DC-3 aircraft since December 1, 1968, and therefore did not meet the "recency of experience" requirement of 14 CFR § 61.47, Federal Aviation Regulations. The co-pilot hired for the flight, William H. Stovall, Jr., possessed a commercial pilot's certificate but he was not type-rated in DC-3 aircraft. From the proof, it appears that Hayes, the Avion pilot, agreed to accompany the flight from Memphis as far as New Orleans.

Prior to departure from Memphis, an individual who identified himself as Tennyson telephoned the Memphis Flight Service Station at 3:20 A.M. and got a weather report for New Orleans. The Flight Service Station attendant, Kathleen McGaughran, advised the caller that the 2:45 A.M. New Orleans weather reflected a visibility of three miles. She further provided the caller with an area weather forecast which indicated that a cold front would be moving into northwest Louisiana near daybreak, with ground fog forming over land ahead of the front, and that visibility in New Orleans would be below one mile after 4:00 A.M. At 3:26 A.M. the person identifying himself as Tennyson called back and filed an instrument flight rule flight plan to New Orleans, indicating an estimated flying time of two hours and ten minutes. No alternate destination was listed on this flight. The aircraft departed Memphis at approximately 4:36 A.M.

Enroute, at approximately 5:35 A.M., N142D called the Flight Service Station, Jackson, Mississippi, requesting the current New Orleans airport weather. Gerald Davis, the attendant, informed the aircraft that the 5:00 A.M. Moisant weather was visibility one-sixteenth mile in fog and smoke, with a runway visual range of "1200 feet variable 1400 feet," with a fog obscuring 9/10ths of the sky. In response to the aircraft's question concerning the New Orleans forecast for the next couple of hours, Davis informed the aircraft that the Moisant Field forecast was visibility 1/16th mile in ground fog and smoke, variable, to visibility one mile in ground fog and smoke until 9:00 A.M., then becoming clearer, visibility two miles in ground fog and smoke.

At approximately 6:08 A.M., control of N142D was transferred to the Houston Air Route Traffic Control Center from the Memphis Air Route Traffic Control Center. In the first transmissions from Houston the aircraft was advised that Moisant was "below minimums." The aircraft asked the Houston controller what was the closest other airport open nearby. At the time of this transmission the aircraft was approximately 23 miles north of McComb, Mississippi. The Houston controller informed the aircraft of poor weather conditions at McComb, informed him of the weather conditions at Baton Rouge which were apparently above minimums, and informed the aircraft that a pilot report had been received which indicated that the weather was good at Natchez, Mississippi.

The pilot indicated to Houston control that he had been advised that the weather might improve and that he would make his decision at New Orleans. N142D further communicated to Houston control that he would hold until the sun got up and then, "we'll fly on over and take a look." At 6:19 A.M. the aircraft, upon being asked by Houston control whether or not it wanted to hold north of New Orleans or come on down, stated, "well, we're going to come on over and hold; we'd like to come down and make one pass at the field and then proceed back and hold."

At approximately 6:35 A.M., Houston advised New Orleans Approach Control, which was physically located in the Moisant tower, that he had a DC-3 who said he "wants to come in and take a look at it." The aircraft was then handed off by radio communications and radar identification to the New Orleans approach controller, Frederick Goertz. At the time of this hand-off, the aircraft was approximately 30-35 miles from Moisant airport.

The initial radio transmissions between Moisant Approach Control (MSY AR/DR) and the aircraft N142D concerned the existing weather conditions. Coupled with the weather information previously received, this transmission advised the airplane that there was poor weather at the airport. With the times indicated in Greenwich Mean Time (six hours later than the Central Time referred to above), those messages were:

1235:33 142D Ah, New Orleans Approach, Douglas one forty-two Delta out of three point four for three thousand

MSY AR/DR Douglas one four two Delta, New Orleans Approach Control, maintain three thousand, proceed direct to the ILS outer compass locator and, ah, weather is, ah, sky partially obscured, visibility one-sixteenth, fog and smoke, altimeter three zero zero zero, runway one zero, visual range less than six hundred feet

1236:18 MSY AR/DR Did you get that, one four two Delta?

142D Ah, roger, four two Delta, we got it, ah

1236:36 142D Ah, Approach, one four two Delta, what'd you say you had on the RVR?

MSY AR/DR Less than six hundred feet

142D Ah, roger, what's your minimums? Twenty-four hundred?

MSY AR/DR That's correct. Category two is not authorized, ah, not adequate

1236:54 142D Ah, roger, ah (in background from flight) ask him if we can make a low pass

At this time clearly the aircraft was well informed of the weather at Moisant, and the pilot was...