United States v. Newman, Civ. No. 3015.

• Decision Date: 07 October 1971
• Docket Number: Civ. No. 3015.
• Citation: 331 F. Supp. 1240
• Parties: UNITED STATES of America, Plaintiff, v. Art C. NEWMAN, Defendant.
• Court: U.S. District Court — District of Hawaii

331 F. Supp. 1240

UNITED STATES of America, Plaintiff, v. Art C. NEWMAN, Defendant.

Civ. No. 3015.

United States District Court, D. Hawaii.

October 7, 1971.

Michael Sherwood, Asst. U. S. Dist. Atty., Robert K. Fukuda, U. S. Dist. Atty., for plaintiff.

Myer Cyril Symonds, Honolulu, Hawaii, Bouslog & Symonds, Honolulu, Hawaii, of counsel, for defendant.

DECISION

TAVARES, District Judge.

This action was brought by the United States of America (Federal Aviation Administration) to recover a civil penalty in the sum of Six Thousand Dollars ($6,000.00) from the defendant, Art C. Newman, the holder of Federal Aviation Administration Airman Certificate No. 1015790 with Airline Pilot Rating, and who was at all times of significance herein, employed as an airline transport pilot and command pilot by Aloha Airlines, Inc., a Hawaiian Corporation, which has its principal place of business within the jurisdiction of this Court, under Section 901(a) (1) of the Federal Aviation Act of 1958, as amended, 49 U.S.C. 1471(a).

The action seeks to recover a civil penalty in the sum of One Thousand Dollars ($1,000.00) from the defendant based upon a violation of Section 91.9 of the Federal Aviation Regulations (14 C. F.R. 91.9)¹ in that defendant allegedly operated the Viscount aircraft carelessly and in a manner which endangered life or property of others by reason of his failure or refusal to have a known malfunction of the aileron trim tab actuator assembly corrected prior to the five flights which took place on July 3, 1968.

Civil penalty in the sum of FIVE THOUSAND DOLLARS ($5,000.00) is sought from the defendant based upon his having taken off the aircraft on the five separate flights, described above, at a time when equipment required to be operable in order to comply with airworthiness requirements under which the aircraft was type-certified was in fact operating improperly, e. g., the aileron trim tab actuator assembly, in violation of Section 121.303(d) (1) of the Federal Aviation Regulations (14 C.F.R. 121.303(d) (1)).²

By the Pretrial Order herein (R. p. 18) it was agreed by the parties that on July 3, 1968, the defendant was the pilot in command of Aloha Airlines V-745D, a Viscount aircraft which made five takeoffs and landings with 10 to 52 passengers in traveling from the Hawaiian Islands of Oahu to Molokai to Maui to Kona on Hawaii, thence returning to Maui and back to Oahu, the point of origin.

The aircraft was equipped with an aileron trim tab which was a control required for that type of aircraft by its certification of airworthiness. Evidence established that this control is operated from within the control cabin by two toggle switches located on the control pedestal between the Pilot and the Copilot. On this aircraft an electrically operated trim tab is fitted to the right aileron. The tab is operated by an electric actuator controlled by a pair of switches, the switch positions being marked, "Drop Left Wing", "Off", and "Drop Right Wing", with the Left or Right designations corresponding to the right or left desired movement of the aircraft. (Console photograph not made a part of the record and Ex. D-7, Viscount Instruction Manual). The Air Carrier Manual (Ex. P-2) provides:

"Aileron tab is electrically operated and controlled by two spring-loaderto-center switches and a position indicator. The dual switches are provided as an additional safety feature. Both switches must be held simultaneously to operate the tab. The forward switch determines direction, and the aft switch completes a series circuit. The circuit is inoperative on emergency electrical power. Should the aileron trim control run to full travel, reduce the air speed immediately. Both pilots exerting force on the controls can maintain control at lower speeds. Land as soon as practical.",

and,

"* * * The control locks shall not be engaged in flight. Should they inadvertently become engaged, keep in mind that the trim control tabs will operate in reverse since they will then function as primary controls." (Ex. P-3.)

There was a malfunction of the aileron trim tab control which had been subjected to repair prior to the flights here in question. The nature and extent of the difficulty occasioning that repair job is not before the Court. Suffice it to say that the aircraft had been placed back on the flight line as serviceable. The fact that it had undergone repair the night before, however, was known to defendant.

On the morning of July 3, 1968, defendant completed the details of his preflight routine in the Dispatch Office and both he and the Dispatcher "signed off" the aircraft. The Captain (defendant) proceeded to the aircraft on the ramp. His First Officer, Co-Pilot had been engaged in his routine preflight activities, and upon the arrival of the Captain explained to him that the aileron trim tab switch was operating in reverse. Observation by the Captain verified that the switch, when activated to "Drop Left Wing" position, actually activated the aileron trim tab control in such a manner as would have caused the control to Drop the Right Wing, and vice-versa. The calibrated indicator needle accurately displayed the true action of the aileron trim tab but registered exactly opposite to the normal and intended function of the activating switching device. The Pilot and Co-pilot jointly determined that the aileron trim tab ran to full travel in either direction, and that the degree of trim was accurately reflected by the calibrated indicator needle. Not in dispute is the fact that the Captain and Co-pilot were in agreement that the aileron trim tab control had been cross-wired and that the reverse operation of the switch was the result of such cross-wiring. The evidence establishes that neither the Pilot nor Co-pilot were qualified by background training or experience to make such a determination, and that in fact such diagnosis was not even technically accurate.³

The Captain testified that he discussed the matter with Yoshiaki Nakamura who was the lead mechanic of Aloha Airlines and line mechanic servicing the proposed flight; that they observed the working of the aileron trim tab on the ground and also within the aircraft at the switches on the control pedestal; that Nakamura agreed with the Pilot and Co-pilot that it was safe to operate the aircraft in its known condition. The Co-pilot testified that he recalled seeing the Captain with Nakamura outside the aircraft, but from his own position in the cockpit could not hear their conversation, and that he could not recall whether Nakamura had been in the cockpit.

Nakamura testified...