United States v. Miller
| Decision Date | 15 June 1962 |
| Docket Number | 17009.,No. 17008,17008 |
| Citation | 303 F.2d 703 |
| Parties | UNITED STATES of America, Appellant, v. Florene I. MILLER, and Catherine M. Smith, Executrices of the Estate of Mark Peter Miller, Deceased, Appellees. UNITED STATES of America, Appellant, v. TERMINAL FLOUR MILLS COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William H. Orrick, Jr., Asst. Atty. Gen., C. E. Luckey, U. S. Atty., Morton Hollander, Howard E. Shapiro, Robert E. Powell, Attorneys, Dept. of Justice, Washington, D. C., for appellant.
R. R. Bullivant, Darrell L. Johnson, Walter H. Pendergrass, Patrick Ford, Portland, Or., for appellee.
Before BARNES, HAMLEY and MERRILL, Circuit Judges.
These two suits brought against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., arose as a result of the mid-air collision of two privately-owned light aircraft near Boeing Field, Seattle. The plaintiffs in one suit are executrices of the estate of Mark Peter Miller, pilot of one of the aircraft, who was killed in the accident. The plaintiff in the other suit is Terminal Flour Mills Company which owned the aircraft operated by Miller.
In both cases the plaintiffs' claims were based on allegations of negligence on the part of Government employees in the control tower at Boeing Field. The United States denied negligence and alleged contributory negligence on the part of Miller. The cases were consolidated for a non-jury trial which resulted in judgments in favor of the plaintiffs, the total award being $123,085.60. The United States appeals.
On June 21, 1956, when this accident occurred, the Civil Aeronautics Administration (CAA) was an agency of the United States authorized to maintain facilities and employ personnel for the regulation and protection of air traffic.1 Among such facilities were airport control towers manned by CAA personnel. CAA operated such a tower at Boeing Field.
At the time of the collision the weather was clear, the visibility and ceiling were unlimited, and the wind was calm. These conditions called for aircraft pilots using Boeing Field to proceed under Visual Flight Rules (VFR) as set forth at 14 CFR 60.30-33, and in the Army, Navy and Civilian (ANC) Procedures for the Control of Air Traffic.2
Some few minutes before the accident Miller, who was piloting his Beechcraft en route from Portland, Oregon to Boeing Field, radioed the tower from an unknown point south of the field, requesting landing instructions. The tower responded "Beech 06 Charlie cleared to enter right traffic, runway 30, wind calm, report turning base."3 Upon receipt of these instructions Miller inquired as to whether 30 was the short runway, and he was advised by the tower: "30 is the short runway." No further transmission was made to, or received from, Miller.
At the time of and prior to the accident, the personnel of the tower knew that the pilot of the Cessna, which was the other plane involved in the accident, had with him a student who was practicing "touch-and-go" landings on the field and was following a right traffic pattern.4 The Cessna was being given landing and take-off instructions by means of light signals from a light gun operated from the tower. The tower personnel assumed that the Cessna was being operated by the student pilot. At least one other aircraft from the Boeingbased Forrest Taylor School of Flying was also using runway 30 for that purpose at that time.
After the above-described radio communication between Miller and the tower, the Cessna and other aircraft based at Boeing Field continued their touch-and-go landings, being directed in this by light gun signals from the tower. Shortly thereafter the Cessna completed a "touch-down" and was climbing to pattern altitude (one thousand feet) on the crosswind leg. The tower personnel did not recall looking at the Cessna after it turned into the crosswind leg.5
As the Cessna was climbing along the crosswind leg at a speed of about seventy to ninety miles per hour, the Beechcraft, piloted by Miller, came over the hills to the northeast of the field. The latter plane, which was traveling 140 to 160 miles per hour, was then at an altitude of one thousand to eleven hundred feet, which was slightly higher than the Cessna. It was descending in a turning left bank of about ten to fifteen degrees.
While the Beechcraft was engaged in this maneuver about sixteen hundred to two thousand feet north of the point of impact, the Cessna executed a ninety-degree right turn off of the crosswind leg onto the downwind leg. It had almost completely leveled out on that leg at the time of the collision.
Miller's Beechcraft was visible from the control tower for from eighteen to twenty-four seconds immediately prior to the collision. Had the tower operator seen Miller's plane during that time he would have recognized that it might constitute a hazard to the operation of the Cessna, and that the Cessna might constitute a hazard to the operation of the Beechcraft. Neither operator saw the Beechcraft at any time prior to the collision, nor did they see the collision itself. Hence no effort was made by the tower to inform Miller by radio of the proximity of the Cessna.
On the basis of these facts the trial court found and concluded that the tower operators were negligent in eight different respects, as set out in the margin.6 The trial court also found and concluded that the negligence of the tower operators was the proximate cause of the collision between the two airplanes. Finally, the court found and concluded, Miller was not contributorily negligent.
Appellant challenges each of these ultimate findings and conclusions as to negligence, proximate cause, and contributory negligence. We turn first to the question of contributory negligence. If the finding and conclusion that Miller was not contributorily negligent cannot stand, the judgment must be reversed, without regard to whether the court was correct as to negligence and proximate cause.
The Government argues that, under the established facts, Miller was contributorily negligent in several respects. One of these, it was asserted, was his violation of the right-of-way rules prescribed by the CAA with regard to converging and overtaking aircraft. The pertinent part of the Air Traffic Rules in question, 14 CFR, part 60, section 60.14(b) and (d), is quoted in the margin.7
The basic facts as to the relative positions of the aircraft immediately prior to the collision are not in dispute. The Cessna approached the point of impact from the right of Miller's Beechcraft and turned to a course approximately parallel to that of the Beechcraft. The Beechcraft overtook the Cessna, the right wing of the Beechcraft striking the left wing of the Cessna from the rear.
It follows that, both as the aircraft on the right, and as the overtaken aircraft, the Cessna had the right-of-way over the Beechcraft, providing that under the circumstances then existing, the right-of-way rules referred to above were applicable.
But appellees argue that, under conditions then existing these right-of-way rules were not applicable. This argument is predicated upon a "note" which appears under section 60.14, reading in part as follows:
"Note: Right-of-way rules do not apply when, for reasons beyond the pilot\'s control, aircraft cannot be seen due to restrictions of visibility * * *"
Appellees contend that this note governs, and renders the right-of-way rules inapplicable, because the trial court found as a fact that "* * * Miller could have maintained a reasonable lookout while approaching the point of impact and not have seen the Cessna because of his limited visibility and the camouflage effect of the background." On the other hand, the Government contends that if it be assumed that this finding of fact is correct, it still would not have excused Miller from performing the duty imposed by the regulations to accord the right of way to the Cessna.8
It is axiomatic that any regulation should be construed to effectuate the intent of the enacting body. Such intent may be ascertained by considering the language used and the overall purpose of the regulation, and by reflecting on the practical effect of the possible interpretations.
The phrases "beyond the pilot's control" and "cannot be seen" appear to contemplate that only physical impossibility, due to such factors as weather or terrain, should excuse application of the right-of-way rules. Had mere difficulty of recognition or perception been intended as the relevant criterion, more appropriate language would have been used.
This conclusion is supported by reference to the specific language of the right-of-way rules. Several pilots testified that it is much more difficult to see an aircraft which is at a lower altitude, where it may be partially camouflaged, than to see an aircraft against the horizon or sky. Presumably this fact was known to the CAA when these rules were promulgated, yet no consideration was given to this factor in prescribing the right-of-way rules.9
It is unlikely that the CAA would provide in a rule that the aircraft at a higher altitude must give way to one at a lower altitude, then in a note to the rule excuse the pilot of the former of this duty because it is difficult to observe the latter.
Practical considerations of air safety also tend to support this interpretation of the rules. It is in and around cities, with their concomitant background camouflage, that most airports, and hence most air traffic, will be found. It is most improbable that under these circumstances, where the utmost of vigilance is demanded, the CAA would choose to relieve a pilot of the duty to obey the right-of-way rules because of conditions which are characteristically normal for such an area.
With this construction in mind, we turn to the question of whether the above-quoted finding of fact is sufficient to excuse the duty...
To continue reading
Request your trial
-
Pierre v. Comm'r of Internal Revenue, No. 753–07.
...the regulation is entitled to deference. Neither the cases— Oteze Fowlkes v. Adamec, 432 F.3d 90, 97 (2d Cir.2005), United States v. Miller, 303 F.2d 703, 707 (9th Cir.1962), and Lantz v. Commissioner, 132 T.C. ––––, –––– n. 10, (2009) (slip op. at 23–24)—nor the so-called hornbook law on w......
-
Himmler v. United States
...v. Beech Aircraft Corp., 258 F.2d 602 (3d Cir. 1958); Kullberg v. United States, 271 F.Supp. 788 (W.D.Pa.1964); United States v. Miller, 303 F.2d 703 (9th Cir. 1962); Deal v. United States, 413 F.Supp. 630 (W.D.Ark.1976), 552 F.2d 255 (8th Cir. 1977); Baker v. United States, 417 F.Supp. 471......
-
United Air Lines, Inc. v. Wiener
...United States v. Schultetus, 277 F.2d 322 (5th Cir. 1960), cert. den. 364 U.S. 828. 81 S.Ct. 67, 5 L.Ed.2d 56 (1960); United States v. Miller, 303 F.2d 703 (9th Cir. 1962), cert. den. 371 U.S. 955, 83 S.Ct. 507, 9 L.Ed.2d 502 4 Ibid. 5 Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct.......
-
Management Activities, Inc. v. U.S.
...Regulations (FARs) constitute negligence as a matter of law. Rudelson v. United States, 602 F.2d 1326 (9th Cir.1979) United States v. Miller, 303 F.2d 703 (9th Cir.1962), cert. denied, 371 U.S. 955, 83 S.Ct. 507, 9 L.Ed.2d 502 (1963); Jenrette v. United States, 14 Avi. Cases (CCH) 17,798 (C......