In re N-500L Cases

• Decision Date: 25 August 1981
• Docket Number: Civ. No. 78-2126.
• Parties: In re N-500L CASES.
• Court: U.S. District Court — District of Puerto Rico

517 F. Supp. 825

In re N-500L CASES.

Civ. No. 78-2126.

United States District Court, D. Puerto Rico.

April 28, 1981.

As Amended May 11 and August 25, 1981.

COPYRIGHT MATERIAL OMITTED

Philip Silverman, Speiser, Krause & Madole, Washington, D. C., Harvey B. Nachman, Santurce, P. R., Paul E. Calvesbert, Hato Rey, P. R., attys. of the plaintiffs' committee.

Domingo A. Alvarez, Rio Pierdras, P. R., Richard H. Silver, Miami, Fla., Gabriel I. Penagaricano, Santurce, P. R., Jorge Ortiz Brunet, Ortiz, Toro, Ortiz, Bruner & Navelra, Hato Rey, P. R., James A. Toro, Old San Juan, P. R., Angel L. Tapia Flores, Rio Piedras, P. R., Rafael Ojeda Colón, San Juan, P. R., Gustavo Gelpi, Old San Juan, P. R., Jorge M. Suro, Santurce, P. R., Robert E. Schneider, Jr., Santurce, P. R., and Jiminez & Fuste, Hato Rey, P. R., for plaintiffs.

Francisco Ponsa Flores, San Juan, P. R., Alex Gonzalez, Dubon, Gonzalez & Vasquez, San Juan, P. R., Calvin F. David, Walton, Lantaff, Schroeder & Carson, Miami, Fla., Francisco, Agrait, Oliveras, Agrait & Oliveras, Hato Rey, P. R., Jose A. Masini Soler, Soler Favale & Masini Soler, Hato Rey, P. R., Phillip J. Kolczynski, U. S. Dept. of Justice, Washington, D. C., Vilma J. Vilá Sellés, Asst. U. S. Atty., Hato Rey, P. R., Steve Segal, Rio Piedras, P. R., Alberto J. Pérez Hernández Dubón, González & Vasquez, San Juan, P. R., Robert J. Griswold, San Juan, P. R., for defendants.

DECISION AND ORDER

TORRUELLA, District Judge.

This is one of several decisions related to the September 26, 1978 crash of the N-500L,¹ a Twin Beech aircraft which came down in the Barrio Obrero section of San Juan, Puerto Rico. It is the first dealing with the merits of a tragedy which resulted in the death of all on board and caused diverse personal injuries and property damage on the ground. It is an undisputed fact that the cause of the accident was the wake turbulence ("wing tip vortex") generated by the overtaking and passing of N-500L by Eastern Air Line's Flight 75,² an L-1011 type aircraft, while both N-500L and EAL 75 were on final approach to land at Isla Verde International Airport and in direct communication with Federal Aviation Administration air traffic controllers of said facility.³

Twenty-nine suits were filed in this Court and thereafter consolidated. Defendants were EAL, FAA, Old South Air Service Inc. d/b/a Air Caribbean,⁴ Francisco Cruz,⁵ Cornhill Insurance Company, Ltd., representing certain underwriters at Lloyds of London,⁶ and Corporación Insular de Seguros.⁷ On the eve of trial of the lead case, EAL and the FAA admitted liability and settled all of Plaintiffs' claims for the total amount of $5,690,000.00, saving their alleged right of indemnity against N-500L, and against Cornhill and Corporación Insular, the insurers of the operator (Air Caribbean) and owner (Cruz) of the N-500L, respectively. All Defendants stipulated that the settlements arrived at were reasonable and that the Court need only determine the percentage of fault, if any, attributable to each Defendant. Thereafter a three-week trial ensued whereupon after hearing various witnesses, receiving numerous exhibits, and visually inspecting the Isla Verde Control Tower the Court made preliminary findings from the bench.

We consider the following to be the immediate and proximate causes of this accident: While both EAL 75 and N-500L were on parallel easterly courses, N-500L crossed EAL 75's path from right to left, thus putting itself in a position which reasonably could be foreseen to be downwind and below EAL 75's projected flight path, a location which placed N-500L in a dangerous position vis-a-vis EAL 75's wing tip vortex; thereafter, EAL 75 overtook N-500L in close proximity and from a higher altitude, a viewpoint which permitted its crew to observe the dangerous situation created by N-500L's maneuver; nevertheless, and although aware that N-500L had lost sight of it shortly before the point of overtaking, EAL 75 continued unswervingly on its path without attempting to minimize the impact of this encounter; meanwhile, the FAA controller when asked by N-500L for help in locating its "lost traffic" (i.e., EAL 75), failed in his duty to aid the N-500L not only by not using the various means at his disposal to locate the respective positions of the aircraft, but also by giving N-500L a response which lured the pilot of N-500L into a false sense of security and further led him into the wake of the EAL 75; lastly, the pilot of the N-500L by losing sight of an L-1011 while in its immediate vicinity, and in thereafter blindly following the controller's clearance, acted in an unairmanlike manner and sealed his fate and that of his passengers, to whom he owed the highest degree of care.

In stating the above we are not unmindful of the rapidity with which these unfortunate events developed: approximately 4 minutes from first contact to crash and about 42 seconds from overtake to crash. But this undeniable factor in air transportation only serves to emphasize the duty of pilots and air controllers to exercise their judgment and foresight in such manner as to avoid placing aircraft in situations from which only flawless, split-second timing under stressful conditions can be relied upon to avoid disaster.

In support of our conclusions, and in compliance with Rule 52 of the FRCP, we hereby find and conclude:

FINDINGS OF FACT

1. On September 26, 1978 at approximately 6:45 P.M., Twin Beech aircraft N-500L being operated as Air Caribbean commuter Flight 309 crashed in the Barrio Obrero section of San Juan, Puerto Rico while on route from Aguadilla, P.R. The pilot and five passengers were killed and there was substantial property damage and personal injury on the ground.

2. The N-500L, crashed as a result of an encounter with wake turbulence which had been generated by an L-1011 type aircraft which was on approach to San Juan International Airport and was denominated EAL Flight 75. Wake turbulence is an aerodynamic phenomenon caused by the movement of an airfoil through the atmosphere. A pair of counter-rotating wing tip vortices, sometimes described as small horizontal tornadoes, are generated behind the aircraft's wings, the intensity of which is governed by the weight, shape and speed of the airfoil. These vortices drift behind and below the flight path of an aircraft, from the direction of the prevailing wind.

3. The weather conditions at San Juan at the time of the crash were good. Visibility was 12 miles, with the lowest layer of clouds at 3,000 feet and scattered. Temperature was 80°F and the surface winds were out of the southeast at 3 knots. Official sunset was 6:17 AST⁸ and the end of civil twilight was 6:30 AST. In the clear weather conditions, called VFR conditions, such as those which existed on the night of the accident, pilots are required by regulations to see and avoid each other regardless of the type of clearance they receive from air traffic control. 14 C.F.R. 91.67(a).

4. Jerry Cannon, pilot of the N-500L, EAL 75's crew members and the FAA air traffic controllers were all qualified and currently rated to perform the jobs in which they were functioning on the night of the accident.

5. On the night of the accident, EAL 75 approached the northern coast of Puerto Rico from the ocean on a heading of 125 degrees (southeastbound). At 6:39:18 EAL 75 was told by FAA Air Traffic Control that it was 15 miles from "Condo",⁹ that it should continue its 125° heading until it intercepted the localizer course to Runway 10 at SJU, and that it was cleared to perform the Lagoon Approach to SJU. The Lagoon Runway 7 (visual) Approach involves tracking the localizer to Runway 10 until reaching San José Lagoon, which lies at the western edge of the airport, then turning left 30° to line up with Runway 7, and thereafter proceeding visually to land on that runway. The flight data recorder foil taken from EAL 75 reveals that said aircraft intercepted the localizer inbound to the airport, turned left, and eventually landed on Runway 7 in accordance with the published procedure.

6. At all times pertinent to this case N-500L was being flown under visual flight rules (VFR), no flight plan having been filed, and as a commuter flight was subject to Part 135 of the Federal Aviation Regulations (FAR). EAL 75 was being flown on an instrument flight rule (IFR) plan filed with FAA Air Traffic Control, and as scheduled air carrier was subject to Part 121 of the FAR's.

7. Normal procedure for a VFR pilot to SJU for landing requires that the pilot call SJU approach control on the approach control frequency when near Dorado airport, which is 17 miles west of San Juan. The approach controller then sequences the VFR aircraft into the approach sequence and turns it over to local control in the tower cab for ultimate landing clearance.

8. In this case, N-500L's approach frequency was inoperative. The pilot of N-500L called up the local controllers at 6:40:40 and advised them that he was unable to contact approach control but was coming up on Levittown, which is a VFR reporting point approximately ten miles west of San Juan airport. Because the air traffic controller working the local control position in the tower cab was not qualified to handle aircraft in approach control airspace and was not radar qualified, and because the N-500L had called the tower while it was in approach control airspace, the tower cab coordinator stepped in to assist the local controller and communicated with the pilot of N-500L.

9. At this time tower controllers observed on a radar repeater scope that EAL 75 was descending from 3,000 feet, in a position directly behind and 2 miles west of N-500L. At 6:41:15 the pilot of N-500L was advised by the cab coordinator that he had an Eastern Airlines L-1011 aircraft two miles behind him at his six o'clock position,¹⁰ that the airliner was at an altitude of 3,000 ft., and that said aircraft was overtaking him. A heading of 130 degrees ...