Solomon v. Warren
| Decision Date | 15 October 1976 |
| Docket Number | No. 74-2670,74-2670 |
| Citation | 540 F.2d 777 |
| Parties | Harold SOLOMON, as Personal Representative of the Estate of Jerome E. Levin, Deceased, and Leatrice D. Levin, his wife, Deceased, and as Guardian of the Person and Property of Ellynn Joyce Levin, Jeffrey Allan Levin and Lawrence David Levin, minors, Plaintiffs-Appellees-Cross Appellants, v. Stanley WARREN, as Executor of the Estate of Paul Warren, Deceased, andInsurance Company of North America, a Pennsylvania Corporation,Defendants- Appellants-Cross Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George O. Mitchell, Mallory H. Horton, Miami, Fla., Howard M. Neu, No. Miami, Fla., for Stanley Warren.
James S. Usich, Coral Gables, Fla., for Ins. Co. of N. America.
Spence, Payne & Masington, R. W. Payne, Jr., Robert L. Parks, Robert Orseck, Miami, Fla., James V. Dolan, Ft. Lauderdale, Fla., for Horizon Hunters.
John D. Kruse, Ft. Lauderdale, Fla., for Ranger Ins.
Appeals from the United States District Court for the Southern District of Florida.
Before GEWIN, SIMPSON and GEE, Circuit Judges.
On July 23, 1971, a Cessna 337 Super Skymaster aircraft, piloted by Paul Warren (Warren) with his wife Dolores and Jerome E. Levin and Leatrice D. Levin (the Levins) as passengers, disappeared and was presumed lost at sea in the Caribbean on a flight from the Dr. Albert Plesman Airport, Willemstad, Curacao, Netherlands Antilles, to the Seawall International Airport, Barbados, West Indies. As a result the plaintiff-appellee, Harold Solomon, in the dual capacity of personal representative of the Levins' estates, and as guardian of the Levins' three children, whose respective names and ages at the time of the Levins' deaths were Ellynn 20, Jeffrey 19, and Lawrence 16, brought this action against the defendants-appellants, Stanley Warren, as executor of the estate of Paul Warren, and the Insurance Company of North America (INA), as insurer of Paul Warren under an Aircraft Operator's Liability Policy. 1 The complaint asked damages for the wrongful deaths of the Levins pursuant to the Death on the High Seas Act, Title 46, U.S.C., Section 761, 2 et seq., (DOHSA) and recovery for the Levins' mental pain and grief sustained prior to their death, pursuant to the Florida Survival Statute, Section 46.021, Fla.Stat. (1971). Sitting as an admiralty court without a jury, pursuant to Rule 9(h), F.R.Civ.P. and DOHSA, and with pendent jurisdiction over the survival action, the district court, after a trial, held that Warren was negligent in four respects in his operation of the missing aircraft, and that this negligence was "a direct and proximate result of the (Levins') deaths." 3 The district On appeal the defendants-appellants contend that the district court erred in the following respects: (i) as a matter of law in finding that Paul Warren was negligent in his operation of the aircraft; (ii) in admitting into evidence over the appellants' objections the transcription of the final radio communication purportedly between Warren and the Seawall Airport Control Tower; and (iii) both as a matter of law and fact in the award of various items of damages. The plaintiff-appellee cross appeals from the district court's denial of his motions for prejudgment interest and attorneys' fees.
court awarded total damages of $714,998.00 for all claims of the Levin children as statutory beneficiaries under DOHSA, and $10,000 to each of the Levins' estates on the pendent survival claim for the conscious pain and suffering of the Levins prior to their deaths. See note 10 infra. In accordance with its findings of fact and conclusions of law the district court entered a final judgment for the plaintiff-appellee assessing $434,998.00 of the damage award against the estate of Paul Warren, and assessing the remaining $300,000.00 of the damage award (the amount of its policy limits) against INA. Subsequent to the entry of this judgment the district court denied the plaintiff-appellee's motions for prejudgment interest and for the award of attorneys' fees against INA, pursuant to Fla.Stat. Section 627.428.
We affirm in part and reverse in part.
The Warrens and the Levins left Miami, Florida, on July 14, 1971, for a vacation trip to various Caribbean islands, traveling in a Cessna 337 Skymaster Aircraft, bearing F.A.A. registration number N5310S (the Cessna or N5310S). Paul Warren was the pilot. He had rented the aircraft from Horizon Hunters, Inc., a flying club, of which he was a member. Prior to the departure the Cessna had undergone hundred-hour and annual inspections, a part of which included checking the fuel tanks, hoses, lines and gauges, and a certification by a mechanic that it was airworthy. According to the Cessna Service Manual this particular model is equipped with two main and two auxiliary fuel tanks, with a combined total usable fuel capacity of 128 gallons.
On July 23, 1971, Paul Warren filed with the Curacao Air Traffic Services a Visual Flight Rule Plan (VFR) for an anticipated flight on that date from Willemstad, Curacao, in the Netherlands Antilles, to Seawall Airport, Bridgetown, Barbados, via air routes 7 and 9, a distance of approximately 607 nautical miles, or 690 statute miles. The direction of flight was slightly north of east. The VFR further indicated a proposed cruising altitude of 9500 feet, an estimated speed of 140 knots, with 20 knot headwinds from the east, and an estimated usable fuel supply endurance time of 6 hours and 15 minutes. Warren estimated his flight time from Curacao to Barbados at 4 hours and 45 minutes. Weather information available to Warren indicated that weather conditions along the planned flight route included scattered cumulus clouds and showers with bases of 1500 feet and tops of 16,000 feet, and isolated cumulonimbus clouds and thunderstorms with bases at 500 feet and tops ranging from 30,000 to 35,000 feet. The VFR designated St. Georges, Grenada, as an alternate destination.
At 12:59 Greenwich Mean Time (G.M.T.) (8:59 Atlantic Standard Time or AST) the Cessna left Willemstad Airport piloted by Warren with Mrs. Warren and the Levins as passengers. Twenty-one minutes later the aircraft returned to the Willemstad Airport, and Warren requested that the plane's fuel tanks be "topped off". Although the Cessna had been refueled with approximately 32 gallons upon its arrival at Willemstad on July 20, 1971, an additional 37 gallons of fuel were taken aboard at this time. With a supposed capacity load of 128 gallons of usable fuel aboard, Warren and his passengers in the Cessna again left Willemstad at 13:49 G.M.T. for the 690 statute mile flight to Barbados.
En route to Barbados Warren contacted the air control tower in Grenada, 155 statute miles from Barbados, by radio, at approximately 18:19 G.M.T., 4 hours and 30 At 19:31 G.M.T., 5 hours and 42 minutes after the second departure from Willemstad and 1 hour and 12 minutes after the radio contact with Grenada air control, the final radio communication from the Cessna was received by Seawall Airport Traffic Control on Barbados. A transcript of a tape recording of this communication made by Seawall Traffic Control, admitted into evidence in the district court over appellants' objections, quotes Warren as indicating that the fuel gauges on the aircraft were reading empty, and that the front main fuel tank had burned faster than Warren had anticipated. Further, Warren informed Seawall Control that he would attempt to ditch the aircraft near a merchant vessel, which he said had three large square frames on its deck and a "K" on its funnel. See note 5, infra, and accompanying text.
minutes after departure from Willemstad. In this radio communication Warren stated that the aircraft was at 11,500 feet, descending to 10,500 feet, and proceeding to Barbados.
Following the receipt of this radio communication, Seawall Traffic Control contacted all merchant shipping in the area, and identified the vessel described by Warren as the Alconia, which was located approximately 40 miles west southwest of Barbados. Despite an extensive search of the area no sign of the aircraft or its occupants was ever found. They are presumed lost at sea.
Pursuant to the Federal Business Records Act, Title 28, U.S.C., Section 1732(a), 4 the district court admitted into evidence, over appellants' objections, a transcription of a tape recording made by Air Traffic Control, Barbados, of the final radio communication between Warren and the Barbados Tower. 5 This transcript was appended to the deposition of the Senior Control Officer at Seawall Airport, who authenticated it as an accurate transcription of a tape recording of the communication between Warren and the tower, as contained in a "resume" of the transmissions The appellants object to the admissibility of the transcription because of the testimony of the control officer that a controller on another aircraft, 8P-LAC, served as a relay and assisted Barbados Tower in communicating with the Cessna piloted by Warren. On this basis the appellants, while not challenging the accuracy of the transcription, assert that because the statements attributed to Warren on the tape recording and the transcription are in fact the words of the relay controller on the intermediary aircraft, the transcription and the actual tape are inadmissible hearsay.
between the Warren aircraft and the tower. Deposition of Clyde Outram, pp. 6-8. The control officer further testified that the resume was compiled by Barbados air control as part of its official records. Id.
Appellants' contention lacks merit, since neither the transcription of the tape recording nor the deposition of the control officer support the proposition that Warren's communications to the control tower were relayed by the intermediary aircraft. Rather, the transcription states that the intermediary...
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