Knudsen v. United States, 77 Civ. 3801 (WCC).

• Decision Date: 02 October 1980
• Docket Number: No. 77 Civ. 3801 (WCC).,77 Civ. 3801 (WCC).
• Citation: 500 F. Supp. 90
• Parties: Harald O. KNUDSEN and Katherine M. Knudsen, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

500 F. Supp. 90

Harald O. KNUDSEN and Katherine M. Knudsen, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 77 Civ. 3801 (WCC).

United States District Court, S. D. New York.

October 2, 1980.

Jack Steinman, New York City, for plaintiffs.

John S. Martin, Jr., U. S. Atty. for the Southern District of New York, New York City, for the United States of America; Richard N. Papper, Asst. U. S. Atty., New York City, James M. Barron, Federal Aviation Administration, Washington, D. C., of counsel.

OPINION AND ORDER

CONNER, District Judge:

This action is brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq. The amended complaint alleges that while plaintiff Harald O. Knudsen ("Knudsen") was operating a Britten-Norman Islander BN-2A-6 aircraft at the Puerto Rico International Airport on October 20, 1974, he sustained injuries which resulted in the loss of his left hand. Plaintiffs contend that the United States Government, by and through the Federal Aviation Administration ("FAA"), negligently issued a certificate of airworthiness and a type certificate for the aircraft in question and, shortly prior to October 20, 1974, negligently inspected the aircraft in Puerto Rico. Plaintiffs further assert that the subject aircraft was not in fact airworthy, but was dangerous, defective and ill-designed in that the propellers were positioned so as to constitute a hazard to plaintiff Knudsen, and that the left front door and its appurtenances were not in good operating condition. Knudsen claims damages for pain and suffering, lost income and medical expenses. Plaintiff Katherine Knudsen contends that the injury to her husband resulted in a loss to her of Knudsen's marital services and consortium and has caused her emotional suffering.

The Government has moved for summary judgment on two grounds: first, that plaintiffs' claims are barred by the misrepresentation exception of 28 U.S.C. § 2680(h); and secondly, that the claims are precluded by the exception to the FTCA's waiver of sovereign immunity in 28 U.S.C. § 2680(k) for tort claims arising in a foreign country. This Court previously reserved decision on the misrepresentation exception and held that defendant's motion for summary judgment on the Section 2680(k) issue was denied without prejudice to its renewal upon submission of affidavits further detailing the inspections actually performed on the aircraft in Puerto Rico.

I. Issuance of Certificates and Inspection of Design

In support of its renewed motion, defendant has submitted affidavits which state that the aircraft in the case at bar was imported into the United States with a Certificate of Airworthiness for Export signed by a representative of the Board of Trade of the United Kingdom, and a type certificate that had been issued in accordance with 14 C.F.R. § 21.29.

A. Documentation Certification Procedures

1. Airworthiness Certificate

Affidavits submitted by defendant explain that, under standards applicable to this case, a United States Standard Airworthiness Certificate could be issued on the basis of a United Kingdom Certificate of Airworthiness for Export signed by a representative of the United Kingdom Board of Trade if such Certificate for Export contained the statement that the aircraft had been examined in Britain and found to comply with the applicable United States-British certification convention, FAR Part 23,¹ and conformed to the applicable type certificate as to safety of design, Type Certificate Data Sheet No. A17EU.

The procedures applicable on June 1, 1971 for the original issuance of a United States Standard Airworthiness Certificate for an aircraft are outlined in 14 C.F.R. 21.183(c), which states that an applicant is entitled to such certificate if the country in which the aircraft was manufactured certifies, and the FAA finds, that the aircraft conforms to the type design and is in condition for safe operation. These procedures are amplified in Paragraph 22 of FAA Order 8130.2A, dated May 23, 1969, as revised, which requires that the foreign manufactured aircraft must have been tested for design defects in the country in which the aircraft was manufactured and bear such current certification from that country as would indicate that the aircraft conforms to the type design and is in condition for safe operation.

2. Type Certificate

14 C.F.R. 21.29 states that a United States type certificate may be issued for a product manufactured in a foreign country with which the United States has an agreement for acceptance of such products if: (1) the country in which the product was manufactured certifies that the product has been examined and tested in that country and found to meet applicable aircraft noise requirements and applicable airworthiness requirements for the United States, as detailed in 14 C.F.R. § 21.17, or of the country in which the product was manufactured; (2) the applicant submits the technical data to the FAA concerning aircraft noise and airworthiness; and (3) manuals, placards, listings and instrument markings required by applicable airworthiness requirements are in the English language.

B. Physical Inspection of the Aircraft

FAA Order 8130.2A further directs that an eligible aircraft should be inspected in the United States prior to issuance of a United States Standard Airworthiness Certificate to determine: (1) that all required items are installed; (2) that instruments, instrument markings, data plate and placards are as required; (3) that all equipment is listed on a list appropriate for the aircraft; (4) that all systems have been checked for proper operation, including the engine and propellers; and (5) that all FAA mandatory charges have been complied with. A crucial element of this FAA order states that a further searching inspection, unless deemed "absolutely essential" because of circumstances in an individual case, would be in conflict with the applicable United States-foreign government bilateral airworthiness agreement, since, under these agreements, the foreign certification is accepted by the FAA as evidence that at the time the certificate was issued the aircraft conformed to the type design and was in condition for safe operation. Thus, no additional inspection of the design safety or of the operation of the aircraft in the United States is required, absent unusual circumstances.

C. Inspection of Subject Aircraft

Accordingly, defendant's affidavits state, the application for an airworthiness certificate in the United States for the aircraft in this case was based on the United Kingdom-issued Certificate of Airworthiness for Export and the type certificate which had been issued on the basis of tests conducted in Belgium and Great Britain. The standards under which the FAA was operating at the time it issued the United States airworthiness certificate for Knudsen's plane included the requirement that the FAA agent issuing the United States type certificate recognize the aircraft's type certificate, based on tests and inspections conducted abroad, as conclusive evidence that the aircraft satisfied the statutory requirements of 49 U.S.C. § 1423(a).² As to the Standard Airworthiness Certificate, defendant's affidavits show that the FAA inspector in Puerto Rico followed the directives of FAA Order 8130.2A Paragraph 22, and viewed the British certification for airworthiness and the type certificate data sheet, containing information about the foreign design testing, as indicating that the subject aircraft conformed to the type design approved by the FAA and was certified as airworthy in accordance with applicable British Civil Airworthiness Requirements and noted special requirements of the United States. He thus considered these factors as conclusive evidence that the aircraft met the requirements for United States airworthiness certification. Defendant's affidavits further indicate that the inspector performed the additional physical inspections (none of which were design-related) required by FAA Order 8130.2A and that none of these inspections indicated any need for additional inspection in the United States of the design safety or airworthiness of the aircraft.

D. Legal Standard: FTCA

As this Court ruled in its previous opinion, a tort claim arises under the FTCA where the negligence had its "operative effect." 28 U.S.C. § 1326(b); Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Roberts v. United States, 498 F.2d 520, 522 n.2 (9th Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974); Manemann v. United States, 381 F.2d 704 (10th Cir. 1967); In re Paris Air Crash of March 3, 1974, 399 F.Supp. 732, 737 (C.D.Cal.1975). If every negligent act proximately causing damage occurs outside the United States, Section 2680(k) bars assertion of a claim against the Government even if the accident or loss occurs inside the United States. Manemann, supra. However, where an issue of fact exists with respect to whether negligent acts proximately causing damage occurred both in the United States and in a foreign country, summary judgment may not be granted under Section 2680(k). Leaf v. United States, 588 F.2d 733 (9th Cir. 1978).

E. Discussion

Here, defendant has come forward with affidavits showing that any act with respect to the inspection of the design of the aircraft occurred abroad. Plaintiffs have not come forward with any affidavits or documentary submissions disputing defendant's factual assertions as to type certification and design inspections actually performed. Nor have plaintiffs come forward with any basis to support an argument that, in the case of this aircraft, circumstances existed which made further inspection of the design of the aircraft in the United States "absolutely essential" to the proper issuance of an airworthiness certificate within the meaning of Paragraph 22 of the FAA order. Thus, there appears to be no issue of material fact as to the...