United States v. Compania Cubana De Aviacion, SA

• Decision Date: 18 August 1955
• Docket Number: 15391,15396.,No. 15383,15390,15383
• Citation: 224 F.2d 811
• Parties: UNITED STATES of America, Appellant, v. COMPANIA CUBANA DE AVIACION, S.A., Appellee. UNITED STATES of America, Appellant & Cross-Appellee, v. Mercedes Gutierrez Vda de Fernandez PACHECO, Appellee & Cross-Appellant. Mercedes Gutierrez Vda de Fernandez PACHECO, Appellee & Cross-Appellant, v. UNITED STATES of America, Appellant & Cross-Appellee. UNITED STATES of America, Appellant & Cross-Appellee, v. Gladys de Miranda Vda de SALAS, Appellee & Cross-Appellant. Gladys de Miranda Vda de SALAS, Appellee & Cross-Appellant. v. UNITED STATES of America, Appellant & Cross-Appellee. UNITED STATES of America, Appellant, v. Maria Matilde Ramirez Salas Vda de BAZAN, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

224 F.2d 811 (1955)

UNITED STATES of America, Appellant, v. COMPANIA CUBANA DE AVIACION, S.A., Appellee.

UNITED STATES of America, Appellant & Cross-Appellee, v. Mercedes Gutierrez Vda de Fernandez PACHECO, Appellee & Cross-Appellant.

Mercedes Gutierrez Vda de Fernandez PACHECO, Appellee & Cross-Appellant, v. UNITED STATES of America, Appellant & Cross-Appellee.

UNITED STATES of America, Appellant & Cross-Appellee, v. Gladys de Miranda Vda de SALAS, Appellee & Cross-Appellant.

Gladys de Miranda Vda de SALAS, Appellee & Cross-Appellant. v. UNITED STATES of America, Appellant & Cross-Appellee.

UNITED STATES of America, Appellant, v. Maria Matilde Ramirez Salas Vda de BAZAN, Appellee.

Nos. 15383, 15390, 15391, 15396.

United States Court of Appeals Fifth Circuit.

June 30, 1955.

Rehearing Denied August 18, 1955.

COPYRIGHT MATERIAL OMITTED

James L. Guilmartin, U. S. Atty., Miami, Fla., Geo. S. Leonard, Atty., Dept. of Justice, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., Paul A. Sweeney, Herman Marcuse, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellant.

James Halley Ruby, Miami Beach, Fla., on the brief, for Mildred Lucille Holmes de Valencia, cross-appellant.

David W. Dyer, Douglas D. Batchelor, Miami, Fla., David L. Corbin, Matthew J. Corrigan, New York City (Smathers, Thompson, Maxwell & Dyer, Miami, Fla., Haight, Gardner, Poor & Havens, Mendes & Mount, New York City, on the brief), for appellees.

George J. Baya, Miami, Fla., on the brief for appellees, Milwaukee Mechanics Insurance Company, a corporation and Fidelity & Guaranty Insurance Company, a New York corporation.

J. Martin Wordes, Miami, Fla., Weisman, Allan, Spett & Sheinberg, New York City, on the brief, for appellees, Sadie Rosenberg, Lillian Blatt, Lillian Blatt, as Guardian ad litem of Sheila Blatt, and Lilliam Blatt, Administratrix of the Estate of Ida Rosenberg, Deceased.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

HUTCHESON, Chief Judge.

These are appeals by the United States from adverse judgments entered on April 19, 1954, in favor of the several plaintiffs-appellees, and dismissing the counterclaim filed by the United States against the plaintiff, Compania Cubana de Aviacion, S. A., (hereafter referred to as Cubana) in the above styled and numbered causes.

The litigation arises from the collision on April 25, 1951, off Key West, Florida, between a four-motored DC-4 passenger plane owned and operated by Cubana, and a two-motored Beachcraft SNB training plane (hereinafter referred to as SNB), owned and operated by the United States Navy.

The DC-4 was on a flight from Miami, Florida, to Havana, Cuba. The court's finding 8 was as follows:

"Prior to the departure from Miami on April 25, 1951, of Flight No. 493, a flight plan was filed by Cubana with Miami Air Route Traffic Control. At 11:14 A.M. Miami Air Route Traffic Control issued the following clearance for Flight No. 493:

"`ATC clears CCA 493 cruise and maintain 4000.\'

"This was an instrument flight clearance and was communicated to Flight No. 493. At 11:19 A.M. Flight No. 493 advised Pan American Airways\' Radio in Miami that it was leaving 2000 feet and climbing to 4000 feet. No further radio contact was had with this flight."

Its route called for a course of 223 degrees from Miami to Key West, and somewhere in that general vicinity it had to make a turn south-southwest in order to proceed to Havana at 197 degrees, along, or parallel to, the southern leg of the Key West radio range. The SNB was engaged in a training flight under simulated instrument flying conditions. A combination of blue goggles and amber plexiglass panels in the window of the cockpit, if being used at the time, would prevent the officer in the pilot's seat from looking out of the plane, although he could see the instrument panel.¹

As a result of the collision, both planes plunged into the ocean. The DC-4 carried five crew members and thirty-four passengers. The SNB had a crew of four. There were no survivors. Some forty-five actions for wrongful death and property damage were brought against the United States, Cubana, and other air lines. An Order of Consolidation dated June 1, 1953, divided these actions into three groups. Group A, the one involved in these appeals, consists of those actions in which the United States is the sole defendant, viz., an action brought by Cubana against the United States, twelve actions for the wrongful death of the crew and of some of the passengers, and two subrogation claims by insurance companies for property losses. Group B covers nineteen actions in which one or more of the defendants pleaded the Warsaw Convention Concerning International Air Transportation. Group C consists of ten actions in which the United States is not the sole defendant and in which the said Warsaw Convention was not pleaded. It includes the actions against Cubana for the wrongful deaths of the SNB crew.

The complaints charge that the collision of the two planes was caused by the negligence of the SNB crew. The answer of the United States denies the charge of negligence; its cross-complaint against Cubana alleges that the accident was caused solely by the fault of Cubana and its employees.

There was a full scale trial, which consisted, of depositions and oral testimony of persons claiming to have witnessed the collision, of testimony as to the safety record of the Cubana and its pilots, and as to the qualifications of those employed in the operation of the two planes, and of a great mass of expert opinion evidence by one Downs, a witness for the plaintiff, based upon his examination of the severed wing of the Cubana plane, together with much other testimony, opinion and otherwise. At the conclusion of it all, the district judge filed lengthy findings of fact which dealt with, first, the equipment and qualifications of the pilot, the co-pilot, and the extra members of the crew of the DC-4, as well as of the operators and occupants of the SNB, the arrangements on that plane, and the contemplated training maneuvers which those in that plane were to undertake to accomplish during the training flight in question.

These findings included the pertinent Civil Air Regulations² issued by the Secretary of Commerce under the authority of Civil Aeronautics Act of 1938, as amended, 49 U.S.C.A. § 401 et seq., and in effect at and prior to the time of the collision, together with a finding that at the time of the collision, the operation and flight of both aircrafts were governed by Part 60 of the Civil Air Regulations, and findings 17 to 22,³ which are the crucial findings in the case.

Based on these findings, the court announced its conclusions of law: that each of the plaintiffs in each case should recover of the defendant the amounts set forth in the conclusion appertaining to him; that the cross action of the defendant against Cubana should be dismissed; and that the second count in No. 4129-Civil should also be dismissed and judgments drawn in accordance with these findings were entered.

Motions objecting to the findings of fact and conclusions of law and asking for amended findings of fact, and, in the alternative, for a new trial for errors by the court, and to reopen the cases for taking new testimony, were overruled, and defendant, appealing from the judgment in each case, is here urging that it be reversed and rendered, or reversed and the cause remanded for trial anew.

The plaintiffs in two of the cases, Nos. 15390 and 15391, appealing from the judgments in their favor, in so far as they are inadequate in amount, seek an increase thereof in this court.

The theory of appellees, with which the district judge agreed, was: that the DC-4 and the SNB were flying on a converging course with the DC-4 on the right of the SNB; and that the SNB either negligently failed to see the DC-4 or violated Air Traffic Rule 60.14(b), "When aircraft are converging at approximately the same altitude, each shall give way to the other which is on his right". Appellees also claimed: that, without having obtained adequate and accurate information as to the commercial flights in progress, the SNB was conducting dangerous maneuvers at the time of the accident, and that it was negligent and improper for it to so conduct a training flight across commercial airways at that time and place.

As the United States states its theory of the case, it is that at the time of the accident the two planes were not on converging courses but the DC-4 was overtaking the SNB. Basing this defense on the comparative speeds and courses of the two planes, it points out that the DC-4 was cruising roughly southwest at a speed of 205 miles per hour and at sometime in its progress it had to make a slight southward turn (to 197 degrees) over Key West for Havana, and that the SNB was traveling about 60 miles per hour slower along the eastern leg of the Key West radio range on a course south of west and then changed its direction by 29 degrees to a course slightly north of west when it went over the Key West radio range station, located about 1½ miles east of the place of the accident. So pointing, it insists, on the basis of this argument and the supporting testimony of its eye witnesses to the collision, that it occurred because the DC-4 not only overtook the SNB from the rear but, in addition, made a left turn across the course of the latter in violation of Air Traffic Rules 60.14(d) which provide that any overtaken aircraft has the right-of-way and that the overtaking plane must keep to the right until it is entirely past and clear, i. e., until there is no longer any risk of collision. Moreover, it urges upon us: that the evidence establishes that the flight of the SNB was a standard instrument approach commonly conducted by commercial air lines under similar conditions; that Cubana was fully advised of the training activities of the Navy near Key West; and that any training maneuvers...