New Hampshire Ins. Co. v. United States

• Decision Date: 13 August 1986
• Docket Number: 83-1733 (JAF).,Civ. No. 83-1732
• Citation: 641 F. Supp. 642
• Parties: NEW HAMPSHIRE INSURANCE CO., Plaintiff, v. UNITED STATES of America, Defendant. Nicholas APOSTOL, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

641 F. Supp. 642

NEW HAMPSHIRE INSURANCE CO., Plaintiff, v. UNITED STATES of America, Defendant.

Nicholas APOSTOL, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. Nos. 83-1732, 83-1733 (JAF).

United States District Court, D. Puerto Rico.

August 13, 1986.

Wilfredo A. Géigel, Santurce, P.R., Fernando L. Gallardo-Aramburu, Woods & Woods, Hato Rey, P.R., for plaintiff.

Richard R. Stone, Sr., Trial Atty., Torts Branch, Civ. Div., Richard K. Willard, Asst. Atty. Gen., Daniel F. Lopez-Romo, U.S. Atty., Wanda Rubianes, Asst. U.S. Atty., Curtis J. Wilder, Office of Chief Counsel, F.A.A., U.S. Dept. of Justice, Washington, D.C., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

FUSTE, District Judge.

This case was tried before the court on August 4-5, 1986. The same involves a Federal Tort Claims Act complaint, 28 U.S.C. Sec. 2474. Jurisdiction exists pursuant to 28 U.S.C. Sec. 1346. The plaintiffs are Nicholas Apostol and New Hampshire Insurance Company. On July 20, 1981, Apostol was piloting a Dorado Wings, Inc. twin-engine Britten-Norman BM-4 aircraft which crashed attempting to take off from Runway 7, San Juan International Airport. Apostol, the President of Dorado Wings, was transporting company personnel and mechanics to their base at Dorado Airport, Dorado, Puerto Rico, when the crash occurred. He suffered bodily injury, and claims mental anguish, as well as pecuniary losses. He was suspended as an FAA-licensed, commercial pilot. Pretrial Order filed July 14, 1985, Docket Document No. 83 at 5. Plaintiff New Hampshire Insurance Company stands in subrogation as insurer of Dorado Wings, Inc. The insurance company paid to Dorado Wings, Inc. the amount of $188,000 for the loss suffered. The other occupants of the airplane settled their respective claims prior to trial.

Plaintiffs claim negligence from the Air Traffic Control Tower in dealing with aircraft separation upon departure. Wake turbulence generated by a departing Lockheed 1011, operated by Pan American World Airways, is claimed as being the direct cause of the accident. After having received the evidence on the issue of liability, we find for defendant. Accordingly, its well-preserved motion to dismiss under Fed.R.Civ.P. 41(b) shall be granted. We enter our findings and conclusions as required by Fed.R.Civ.P. 52(a). In so doing, we will discuss the wake turbulence phenomenon and its impact on light aircraft. We will also discuss the principles behind airplane stalls, inasmuch as the government claims, and indeed proved by preponderance of the evidence, that a stall was the cause of the accident. We will then state the facts as found and the applicable law to this particular situation.

Wake Turbulence

Of special concern to pilots of light aircraft is the turbulence which is generated by large aircraft operating in the vicinity of airports. The greatest danger from heavy aircraft turbulence is the effect of wing tip vortices. These vortices are the result of high-pressure air under the wings, spilling around and over the wing tips, to equalize the low pressure area above the upper wing surface. If one could actually see the vortices generated by the wings, they would appear as twin, horizontal tornadoes originating at the wing tips.

These rotating cones of air are created as a result of the generation of lift by the wings of the aircraft. Experts Bertin and Hallock coincide in that the intensity of this turbulence is directly related to the wing span, weight, forward speed of the departing heavy aircraft, and density of the air (density relates up to a certain point on airport altitude, temperature, and other weather-related conditions). In general, the slower the speed of the heavy departing aircraft, the shorter the wing span, and the greater the weight, the greater will be the velocity of the air in the vortices generated by the heavy aircraft. The greatest turbulence is generated by a large aircraft such as PAA 455, Lockheed 1011, when they fly slowly at a high angle of attack. This condition primarily exists during takeoff, climbout, and landing. In this case, PAA 455 departed before Dorado Wings DW-16.

The expert evidence shows that vortex core velocities may be quite high immediately behind a heavy jet which is flying very slowly as in takeoff and while climbing. At cruise speeds, since the air speed is highest and the aircraft weight is spread over the greatest amount of air, the turbulence created is at minimum for said aircraft. Conversely, when the aircraft is on the ground, the wings are not supporting the weight of the aircraft and, thus, vortex cores of significance are not generated. Prior to lift-off (rotation) or after touchdown when landing, wing-tip vortices are almost nonexistent. Government's Exhibit A, DOT Advisory Circular AC-90-23D, Dec. 15, 1972. See Illustration # 1, taken from the Airman's Information Manual, DOT, July 1981 ed., pp. 172-177, Government's Exhibit B, appended to these findings.

A wake encounter is not necessarily hazardous. Of course, if the small aircraft encounters the vortices while flying in alignment with the flight path of the generating aircraft, then the problem may become critical and an induced roll can occur. Airman's Information Manual, Government's Exhibit B, at 173.

Since plaintiffs claim that wake turbulence and air traffic control negligence was the cause of the accident, we will outline some common-sense rules for takeoff behind a large aircraft which can be considered basic procedures for operating near wake turbulence. These precautions or procedures were to be observed by any aircraft such as DW-16 when taking off behind a heavy, large jet, irrespective of whether air traffic control was in operation at the time. The takeoff roll by DW-16 was to be started from the same point as the large aircraft to ensure lift-off ahead of the large aircraft's point of takeoff. This was done by plaintiff Apostol. His climb-out was to be above or to the upwind side of the large aircraft's flight path to avoid potential turbulence. Since both the heavy jet and the DW-16 were taking off from San Juan International Airport's Runway 7 (magnetic orientation 70 degrees, almost facing East), and since the wind was coming from direction 150 degrees more or less, at about 6 knots, Illustration No. 2, appended to these findings, explains the point that we have made.

The Airman's Information Manual, Government's Exhibit B, Sec. 3, entitled "Wake Turbulence", pp. 172-177, at 176, gives specific directives to pilots. When departing behind a large aircraft, the pilot of the light airplane should note the large aircraft's rotation point. The purpose is to have the light aircraft following on takeoff rotate prior to the large aircraft's rotation point. The light aircraft is to continue the climb above and stay upwind of the large aircraft's climb path until turning clear of its way. The light aircraft should avoid headings which will cross below and behind the large, heavy aircraft. In this particular case, as the evidence demonstrated, the Pan American Lockheed 1011, flight 455, took off from the beginning of Runway 7 (threshold area) and most probably rotated between 3,800 and 5,000 feet down the runway. The DW-16, piloted by plaintiff Apostol, took off from the same point as the large, heavy jet. His takeoff run would not be more than 800 feet until he would be airborne. Therefore, it would be expected that DW-16 would rotate for takeoff way behind the rotation point of PAA 455 without violating the commonsense rules which we have mentioned herein.

The Air Traffic Control Manual in effect at the time of the occurrence, plaintiffs' Exhibit 1, gave Air Traffic Controller Sandra Prieto, the necessary guidelines to follow in aircraft departure separation. See plaintiffs' Exhibit 1, Chapter 6, at 173-178. Item 1400, at 173, states that the procedures regarding wake turbulence are to be applied to aircraft operating behind heavy jets and, when indicated, to small aircraft behind large aircraft. Item 1426 states that the air traffic controller should separate a heavy jet taking off from a departing light aircraft taking off behind the heavy jet by two minutes. Item 1426(a) specifically states that the takeoff clearance to the following aircraft, in this case DW-16, should not be issued until two minutes after the heavy jet begins the takeoff roll on the same runway. Whenever in the opinion of the air traffic controller the operation of a light aircraft may be affected by wake turbulence, the control tower should so advise the pilots by simply giving the corresponding clearances, utilizing the phraseology CAUTION, WAKE TURBULENCE in the proper context, depending on the circumstances. The Airman's Information Manual states at page 176, para. 551, that government and industry groups are always making concerted efforts to minimize or eliminate the hazards of trailing vortices. However, the flight disciplines necessary to assure vortex avoidance during visual flight rules (VFR) operations like the ones applicable to DW-16 on the night of the accident, must be exercised by the pilot. Vortex visualization and avoidance procedures should be exercised by the pilot using the same degree of concern as in collision avoidance. Pilots such as Nicholas Apostol knew that in operations conducted behind all aircraft, acceptance of instructions by air traffic control when instructed to follow an aircraft, is an acknowledgement that the pilot will ensure safe takeoff and landing intervals and that he accepts the responsibility of providing his own wake turbulence separation. See Government's Exhibit B, para. 551(c)(2) at 176.

As stated before, plaintiffs claim that the Air Traffic Control Tower was negligent in so advising and that the negligence of the Air Traffic Control Tower was the main contributing cause to DW-16 allegedly having crashed because of its encounter with the wake turbulence generated by PAA...