Times Mirror Co. v. Sisk

• Decision Date: 12 December 1978
• Docket Number: CA-CIV,No. 2,2
• Citation: 593 P.2d 924,122 Ariz. 174
• Parties: The TIMES MIRROR COMPANY, a California Corporation, and Jeppesen and Company, a Colorado Corporation, Appellants, v. Sylvia Jeanette SISK, surviving widow of Melvin Guy Sisk, Deceased, Rosalie Rhemann, surviving widow of Thomas Edward Rhemann, Deceased, Suzanne Ohnesorge, surviving widow of Ronald L. Ohnesorge, Deceased, and Pan American World Airways, Inc., Appellees. 2546.
• Court: Arizona Court of Appeals

Page 924

593 P.2d 924

122 Ariz. 174

The TIMES MIRROR COMPANY, a California Corporation, and Jeppesen and Company, a Colorado Corporation, Appellants, v. Sylvia Jeanette SISK, surviving widow of Melvin Guy Sisk, Deceased, Rosalie Rhemann, surviving widow of Thomas Edward Rhemann, Deceased, Suzanne Ohnesorge, surviving widow of Ronald L. Ohnesorge, Deceased, and Pan American World Airways, Inc., Appellees.

No. 2 CA-CIV 2546.

Court of Appeals of Arizona, Division 2.

Dec. 12, 1978.

Rehearing Denied March 14, 1979.

Review Denied April 17, 1979.

Lesher, Kimble & Rucker, P. C. by William Kimble, Marvin Borodkin and Robert O. Lesher, Tucson, LaFollette, Johnson, Schroeter & DeHaas by Daren T. Johnson, Los Angeles, Cal., for appellants

Barber, Haralson & Kinerk, P. C. by Burton J. Kinerk, Tucson, Byrd, Davis, Eisenberg & Clark by Tom H. Davis and Don L. Davis, Austin, Tex., for appellees.

OPINION

HOWARD, Judge.

This lawsuit is a result of the crash of a Pan Am 707 cargo jet into Mt. Kamunay while approaching Manila International Airport in the Philippine Islands. The deceased were members of the crew who perished in the crash.

The parties stipulated that the trial was to be held in Pima County, that Colorado law governed liability and that Arizona law governed as to damages. The case was tried to a jury which returned a unanimous verdict in favor of appellants. The trial court subsequently entered judgment n. o. v. in favor of the appellees. Appellants claim the case should not have gone to the jury in the first instance and that in any event the court erred in granting judgment n. o. v.

The evidence in the light most favorable to the jury verdict is as follows. The United States and the Republic of the Philippines are treaty members of the International Civil Aviation Organization (ICAO). Each member nation decides who may fly into its airspace and what flight procedures will be authorized. An instrument approach into the Manila Airport was designed by the Philippine government's Civil Aviation Administration (CAA). When an ICAO member nation designs an instrument approach and authorizes its use in its airspace, it publishes the particulars of the approach in its Aeronautical Information Publication (AIP). The United States Federal Aviation Authority (FAA) determines which member nations of ICAO meet criteria acceptable to the United States in their management of airspace and flight procedures. Those nations found acceptable by the FAA are designated as having an "approved AIP". At all times material to this case, the Philippines had an approved AIP, by virtue of which the United States international "flag carriers", such as Pan Am, were authorized to permit their crews to "accept" any instrument approach so published.

The FAA receives the materials and the AIP of all countries as they are issued. If an instrument approach is published in an "accepted AIP" no further checking is made by the American government to verify that the approach meets any criteria.

The instrument approach which the Pan Am crew accepted on the day of the crash was known as a "VOR DME Runway 24" approach. This approach was first authorized by the Philippine government on April 30, 1970, when it was published in the Philippine AIP. Before such authorization, the Philippine CAA designed the approach and set forth the details of how and when it should be flown. On October 29, 1969, the Philippine CAA mailed a complete description of the proposed approach to Pan Am, requesting any comment Pan Am might have. At that time, Pan Am aircraft, both scheduled and chartered, were regularly flying into and out of Manila International Airport. After Pan Am's management received and circulated this proposed approach among its technical people, including its route specialists and chief pilot, no comment was made to the Philippine government.

Appellant Jeppesen is engaged in the business of printing maps and charts which set forth the instrument approach procedures as specified by individual governments. Appellant Times Mirror is a party in this case because of its complete ownership of the Jeppesen & Co. stock.

Jeppesen does not design any instrument approach procedures. It simply depicts the procedures set by the governments on its own format. Jeppesen had a contract with Pan Am to provide it with instrument approach charts on the Jeppesen format, setting forth the requirements and procedures as designed, designated, and authorized by the particular government in its AIP. The contract required it to issue route manual services for Pan Am's overseas division and provide revision services. Jeppesen not only provides the manual to Pan Am but also distributes its Airway Manual worldwide to many thousands of subscribers.

The Jeppesen chart which graphically describes the VOR DME Runway 24 approach remained the same during the one year, two months and twenty-four days before the Pan Am 707 crashed on July 25, 1971. During that time, Pan Am and twenty other airlines flew into Manila Airport, and for that purpose purchased the instrument approach chart published by Jeppesen. During that time neither Pan Am nor any other airline or aircraft was involved in any accident while flying this approach. The chart which Jeppesen provided to Pan Am showed the location of various mountain peaks in the area but did not show Mt. Kamunay. Mt. Kamunay first appeared on the Philippine government's revision of the approach which was made after the accident occurred. After the accident, Pan Am did not reject the unrevised approach although it was free to do so.

The course specified for this instrument approach by the Philippine government in its AIP was over mountainous terrain. It was specified as a 241 degree course, which is in a southwesterly direction. This course led to a special radio transmitter at the airport used for the type of aerial navigation known by the initials VOR. The course began 23 nautical miles from the Manila Airport at a location designated by the name "Bangbang". Basically, the purpose of the VOR DME Runway 24 approach was to safely guide the airplane over the terrain to its landing at Manila. To accomplish this objective, the approach required the aircraft to fly along the course of 241 degrees at specified heights determined by the distance from the airfield. At the start of the approach at Bangbang the aircraft was not to be flown below the altitude of 7,000 feet above sea level. After crossing Bangbang it could be descended but not below 4,200 feet, until it had gotten a fix which indicated that it was at a point 20 miles from the airfield. Once it got that fix it could be further descended, but not below the altitude of 3,000 feet, until it arrived at the 17-mile point. Once it got a fix at the 17-mile point further descent could continue, but not below 2,500 feet, until it had a fix at the 12-mile point. As soon as it got its fix at the 12-mile point it could be further descended, but not below 1,400 feet, until it got a fix at the 7-mile point which was the "final approach fix" which meant it could be flown on down to landing.

On the day of the accident the aircraft, following the AIP, flew to the Bangbang intersection to begin the prescribed approach. When the plane crossed this 23-mile point the first officer said to the captain, "Okay, at 20 miles out you're clear down to 3,000 feet." The captain apparently interpreted this to mean he was then at 20 miles out and began his descent to 3,000 feet. When they arrived at the 20-mile point, they thought they were at the 17-mile point and began descending to 2,500 feet. After beginning their descent to 2,500 feet the airplane crashed into a ridge of Mt. Kamunay at a point 2,525 feet above sea level and a distance of 20 nautical miles from Manila Airport.

The top of Mt. Kamunay is located 19.7 nautical miles from the Manila Airport. It has an elevation of 3,173 feet and is 1.4 nautical miles to the left of the prescribed course. In addition to their mistake as to how far they were from Manila Airport, there was other evidence of negligence on the part of the crew. Pan Am's vice-president for flight standards testified that if the crew had followed the chart, and had not flown below the altitude specified in the chart, there would have been no accident. A pilot who had flown this approach in the Philippines on several occasions testified that on the basis of his experience it was a safe approach. Pan Am investigated the crash and came to the conclusion that it was caused by crew error.

Appellees' theory of liability was that of products liability, to-wit, strict liability under §§ 402A and 402B of the Restatement (Second) of Torts, and breach of warranty of fitness under the Uniform Commercial Code in effect in Colorado. They contended that the chart was defective and unreasonably dangerous. This contention is based on the theory that the minimum altitude between the 20-mile fix and the 17-mile fix should have remained at 4,200 feet instead of dropping to 3,000 feet, because Mt. Kamunay is at 19.7 miles and has an altitude of 3,173 feet, and the ICAO specifies a 1,000 foot safety factor and a 3% Fix error. ¹ This would have required a 4,200 foot minimum altitude between the 17-mile fix and a 20.6-mile fix.

The trial court, in its memorandum decision, adopted the following language of appellees' motion for judgment n. o. v.:

"The uncontradicted evidence in this case showed that at this time . . . the pilot was, in fact, flying the approach procedure depicted on Jeppesen's chart to the best of his ability. . . . His only mistake was that he thought he was 3 miles closer to the Manila Airport than he actually was. However, he was following the minimum altitudes on the Jeppesen chart, as he interpreted his distance from the VOR.

His mistake was in determining his distance, not in misinterpreting Jeppesen's chart or not adhering to its minimum altitudes. He was following the minimum...