Krause v. Sud-Aviation, Soc. Nationale De Constr. Aero., 410

• Decision Date: 02 July 1969
• Docket Number: 411,Dockets 32944,No. 410,32945.,410
• Citation: 413 F.2d 428
• Parties: Charles F. KRAUSE, Administrator and Personal Representative of George T. Stubbs, for and on behalf of Janet Lenora Baker Stubbs, and the minors Mary Margaret Stubbs and Laurie Lucille Stubbs, Libelants-Appellees, v. SUD-AVIATION, SOCIETE NATIONALE DE CONSTRUCTIONS AERONAUTIQUES, Respondent-Appellant. Dorothy Cobb WADE, as Administratrix and Personal Representative of Luke Hampton Wade, Jr., deceased, and for and on behalf of herself and Linda Anne Wade, David Lawrence Wade and Michael Alan Wade, and Norma Delatte Nicol, as Administratrix and Personal Representative of Harold J. Nicol, deceased, for and on behalf of herself and Barbara Ann Nicol, Rebecca Marie Nicol, Theresa M. Nicol, Joette Y. Nicol, and Harold J. Nicol, Jr., Libelants-Appellees, v. SUD-AVIATION, SOCIETE NATIONALE DE CONSTRUCTIONS AERONAUTIQUES, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

413 F.2d 428 (1969)

Charles F. KRAUSE, Administrator and Personal Representative of George T. Stubbs, for and on behalf of Janet Lenora Baker Stubbs, and the minors Mary Margaret Stubbs and Laurie Lucille Stubbs, Libelants-Appellees, v. SUD-AVIATION, SOCIETE NATIONALE DE CONSTRUCTIONS AERONAUTIQUES, Respondent-Appellant.

Dorothy Cobb WADE, as Administratrix and Personal Representative of Luke Hampton Wade, Jr., deceased, and for and on behalf of herself and Linda Anne Wade, David Lawrence Wade and Michael Alan Wade, and Norma Delatte Nicol, as Administratrix and Personal Representative of Harold J. Nicol, deceased, for and on behalf of herself and Barbara Ann Nicol, Rebecca Marie Nicol, Theresa M. Nicol, Joette Y. Nicol, and Harold J. Nicol, Jr., Libelants-Appellees, v. SUD-AVIATION, SOCIETE NATIONALE DE CONSTRUCTIONS AERONAUTIQUES, Respondent-Appellant.

Nos. 410, 411, Dockets 32944, 32945.

United States Court of Appeals Second Circuit.

Argued March 5, 1969.

Decided July 2, 1969.

Charles F. Krause, New York City (Speiser, Shumate, Geoghan, Krause & Rheingold and Peter J. Magee, New York City, on the brief), for libelants-appellees.

William Rand, New York City (Coudert Brothers, New York City, on the brief), for respondent-appellant.

Before LUMBARD, Chief Judge, SMITH, Circuit Judge, and McLEAN, District Judge.^*

LUMBARD, Chief Judge:

These suits in admiralty, based upon the Death on the High Seas Act, 46 U.S.C. § 761 et seq., arose out of the crash of an Alouette II helicopter in the Gulf of Mexico off Leeville, Louisiana on November 30, 1959, killing the pilot and two passengers. Libelants, in their representative capacities, sought recovery from Sud-Aviation, Societe Nationale De Constructions Aeronautiques (SUD), the manufacturer of the helicopter, claiming that a defect in the construction of the helicopter caused the crash. After a seven-day trial without a jury, on the issue of liability alone, the district court found against SUD, holding that the aircraft had been negligently manufactured and that SUD had breached an implied warranty of fitness.

This appeal by SUD questions whether the district court properly allocated the burden of persuasion and whether there was sufficient evidence to support the finding of liability. Since we find no error, we affirm the judgment of the district court.

The Alouette II helicopter, U. S. registration #N519, was built by appellant SUD in France and sold to Republic Aviation Corporation in 1957.¹ It was delivered to Republic in France in February 1959 and shipped to the United States in a partially disassembled state by Republic, who reassembled it and used it for approximately 437 flight hours as a demonstration model. On August 1, 1959, Republic leased it to Petroleum Helicopters, Inc. (PHI) for use in its business of supplying air transportation to companies conducting oil exploration in the Gulf of Mexico. The crash occurred on November 30, 1959, while PHI pilot George Stubbs was ferrying Luke H. Wade, Jr. and Harold J. Nicol, employees of the Gulf Oil Corp., to an off-shore rig in the Gulf of Mexico. All three were killed when the helicopter fell into the water while Stubbs was attempting to return the disabled craft to land.

It is agreed that the crash resulted from a break or "failure" in the structural steel of the helicopter's tail, on the upper right longeron (one of the three steel tubes making up the tail boom) at a point where the horizontal stabilizer bracket was welded to the longeron. At issue is whether the break was caused by a defective weld at the point of failure, or by some other cause for which the manufacturer would not be responsible.

At the trial libelants attempted to prove that the longeron broke because of "incomplete root penetration" in the weld, which caused unusual stress on the longeron and led to the failure. Appellant, on the other hand, maintained that the weld was not defective and that some unusual shock or strain, resulting from mishandling by PHI, caused a crack in the longeron, near the weld, which progressed over a period of time to a complete fracture.

Evidence to support the theory that a defective weld caused the accident came largely from libelants' expert witnesses, William L. Holshouser, whose deposition was read into the record at length, and Isaac Stewart, who testified in person. Holshouser, a Bureau of Standards metallurgist, deposed that his examination of the broken pieces revealed insufficient root penetration in the weld around which the break occurred. The root of a weld is the point at which the surfaces of the two pieces of metal being welded come together, at right angles in the present case. Incomplete root penetration occurs when the weld metal does not sufficiently penetrate this area where the surfaces of the metals are in contact. Holshouser testified that incomplete root penetration would result in increased stress concentration at the point where the weld metal is joined to the tubing, near the root of the weld, and would reduce the load which could be transmitted between the horizontal stabilizer bracket and the longeron. Expert Stewart testified, largely from close-up photographs of the broken pieces, that there was definitely lack of root penetration. He testified in detail to the effect that incomplete root penetration in the weld would cause normal stresses originating in the horizontal stabilizer to be sidetracked through the weld metal to a necessarily weaker and more brittle part of the weld area rather than being passed directly through the root of the weld.

SUD's case consisted mainly of testimony from three experts in support of its theory that it was not a defect in the manufacturing which caused the accident. Two of these experts, Everett Chapman and William Cobey, testified that their examinations of the broken pieces revealed nothing unusual about the weld and that it appeared to be a good weld. They also testified that the break which led to the crash could have been initiated by an incident which occurred about three months before the crash, when the tail rotor blades of the helicopter were accidentally dipped into the water during flight. Although there was testimony from libelants' witnesses that this tail-dipping was not severe, and that the damage caused thereby was minor, there was evidence that extensive repairs were made after the incident. SUD also brought out that the helicopter operating company, PHI, had not conducted a 600 hour inspection, which would have included an examination of the welding to check for cracks, at the time of the crash, which occurred at 622 hours.² SUD also introduced testimony concerning the high quality of the welding techniques used in its manufacturing of Alouette helicopters.

Judge Croake, in a detailed opinion, found that libelants "displaced stress" theory presented the most probable explanation of how the break in the longeron occurred. In addition to crediting Mr. Stewart's testimony on this matter, the court stated:

"The fact that one

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