Appeal from a judgment of the United States District Court for the Eastern District of New York, Matthew J. Abruzzo, Judge, holding that the appellants were negligent, and denying their third party claims for indemnity.
Waterman, Moore and Kaufman, Circuit Judges.
During the past half century we have witnessed the metamorphosis of air travel from a pioneering effort to a mode of transportation that is commonplace for millions of Americans. Yet despite the phenomenal advances which have been made in the technology of the industry, airplane crashes, often unexplained, continue to distress us.
The present suits arose from a plane crash which occurred at Idlewild International Airport (now Kennedy International Airport) on the evening of November 30, 1962. Eastern Air Lines, Flight 512 (hereafter referred to as EAL 512), en route from Charlotte, North Carolina to New York City, crashed while attempting to land on Runway 4 Right, which at the time of the accident was engulfed in swirling ground fog. Twenty-one passengers and 4 crew members perished, while some 28 to 30 other persons were injured.
Numerous separate actions were filed in the District Court against Eastern Air Lines (Eastern) under the court's diversity jurisdiction, and against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Eastern's alleged liability was premised in the main on allegations that the crew of EAL 512 failed to exercise due care in operating the aircraft, and that this negligence was one of the causes of the tragedy. The asserted liability of the government was based on the claim that poor visibility was a factor in the crash and that a substantial contributing and concurrent cause of the accident was the negligence of the Air Traffic Controllers and the United States Weather Bureau observer in failing to provide accurate and up-to-date weather information.
The present actions, one against Eastern and one against the government, with each defendant filing third party claims against the other for indemnity, were selected as "test cases" to determine the issues of liability and the right to indemnity.*fn1 The parties waived a jury, and the cases, limited to the issues of liability and indemnity, were tried by Judge Abruzzo. After 19 trial days, the court filed its opinion in which it found that the accident had occurred because of the concurrent negligence of Eastern and the government. It also found that neither defendant was entitled to indemnity from the other. The court properly certified these cases for appeal under 28 U.S.C. § 1292(b), and we subsequently granted leave to Eastern and the government to prosecute these interlocutory appeals.
In order to unravel the rather complicated issues which confront us, we will first discuss Eastern's liability, then proceed to consider the liability of the government, and finally examine both defendants' claims that they are entitled to indemnity.
The facts, as developed at trial, reveal that EAL 512, a DC-7B four-engine aircraft, arrived over the New York City area at approximately 9:00 P.M. on November 30, 1962. The crew previously had been informed that due to adverse weather conditions the flight might have to be diverted to Philadelphia. While in its holding pattern, the aircraft was advised that "there was pretty bad fog on the airport," and that as a result "some [planes] are making it and some are not."
At approximately 9:37, Approach Controller Ketterman, an employee of the Federal Aviation Agency (FAA), cleared EAL 512 for an instrument landing system (ILS) approach to Runway 4 Right.*fn2 Such an approach required the controller to guide the aircraft by radar until the plane intercepted a localizer beam, at which point the crew assumed full navigation of the plane.
It is an extraordinary circumstance that one of the fortunate passengers who survived the crash, assiduously observed the plane's landing approach. Such eye-witness evidence, usually lacking in airplane crash cases, is especially valuable in determining whether the crew performed in a negligent manner.
The witness, Frank Kolarek, who had occupied a window seat in the rear of the plane, provided detailed testimony dealing with EAL 512's landing approach. It was a coincidence that the witness was a licensed pilot who owned his own plane. He also had taken over 100 commercial flights. A motion picture cameraman by trade, he was trained to observe details and, indeed, did. Kolarek testified that he saw EAL 512 cross Runway 4 Right from the left at an angle over the red lights which mark the beginning of the runway. Despite the apparent lack of alignment with the runway, the plane continued its fatal approach. Its position was evidently not corrected, for as Kolarek went on to testify, the plane was not aligned with the painted white lines he observed on the runway, but instead proceeded at an angle of 20 degrees to the left of these lines.
Kolarek's damaging testimony was not the only evidence indicating that the plane was improperly aligned during its attempted landing. The physical facts of the crash, which were stipulated to by Eastern at the trial, revealed that Runway 4 Right was 150 feet wide with 25 feet of asphalt shoulders on either side. Despite the width of the runway, the plane made its initial impact at a point 423 feet to the left of the center line of the runway (348 feet from its extreme left side), while the main portion of the wreckage came to rest 610 feet to the left of the center line (535 feet to the left of the runway's edge). The mute wreckage of the aircraft thus corroborated Kolarek's testimony that EAL 512 crossed the runway at an angle from the left, and continued its approach despite its improper alignment. With this and other evidence which we need not repeat properly before him, Judge Abruzzo correctly concluded that Eastern, which was responsible for the safety of its passengers,*fn3 was negligent in continuing its landing approach after losing alignment with the runway.
The case against Eastern, however, was not restricted to evidence that the plane was improperly aligned. It also appeared that when the crew finally decided to terminate the improper approach, the "missed approach" maneuver was performed in a negligent manner.
We have already noted that when an airplane executes an ILS landing it is guided by radar until it intercepts a localizer beam. This interception, it appears, occurs at a point beyond the runway's so-called "outer marker." If the aircraft remains on the localizer beam, a visual display and audible signal will occur in the cockpit when the plane passes over the outer marker. The crew thereby is informed that the airplane is 2.7 nautical miles from the runway's threshold, on an extended center line, and that the plane's altitude is 747 feet. Upon passing the so-called "middle marker," a similar display and signal occur, which alert the crew that the plane is then six-tenths of a nautical mile from the beginning of the runway and 209 feet above it. It is at this point -- the middle marker -- that a critical operation is to be performed. The pilot must direct his visual attention outside the cockpit to determine if his craft is in a proper position to land. If, as a result of this action, he concludes that the airplane is not properly positioned, he must execute what is referred to as a "missed approach."
This procedure we have outlined is necessary, we are told, because pure instrument landings are not feasible; the pilot must be able to see the runway in order to land his plane safely. Accordingly, each category of aircraft has a specified minimum visibility requirement which must be met before the pilot may attempt a landing. The specified minimums for EAL 512 -- a DC-7B -- were a ceiling of 200 feet and one-half mile of visibility. Thus, the runway had to be clearly visible to the pilot when the plane was one-half mile from the threshold of the runway and 200 feet above the ground. This distance corresponded to the middle marker, and it is for this reason that the pilot should have made his observations when the plane passed that point.
Eastern's Flight Operations Manual clearly specifies that "a missed approach will be executed when visual contact has not been established when minimums have been reached or at any time visual contact is lost after descent has been made to minimums." And Eastern conceded that it was possible to make a missed approach from as low as 50 feet, while Captain Krasky, Eastern's Manager of Flying, testified that he had executed missed approaches from as low as 25 feet.
It is clear from all the testimony that the missed approach maneuver is basic to safe flying and one with which all commercial pilots must be completely familiar. Indeed, the procedures for its execution were detailed in Eastern's DC-7B Flight Manual. Briefly, it stated that the captain must first apply or call for power, usually METO power (maximum except take-off) although with flaps and gear down and the speed reduced for landing, T.O. power (take-off) may be required. It continued that, as power was applied, the nose of the aircraft should be raised, and when a positive rate of climb was achieved, the wing and flaps should be returned to take-off position,*fn4 and the gear should be brought up. Captain Krasky was clear in his testimony that the flaps and gear should never be retracted before a positive rate of climb had been established; otherwise, the aircraft will descend at an even greater speed.
Despite these established procedures, which were well-known to the crew, it has been conceded by Eastern that at the time of initial impact with the ground not a single one of EAL 512's four engines was producing power equal to METO.*fn5 Moreover, the landing gear, which Kolarek specifically stated had been lowered, was found fully retracted, while the wing flaps were in take-off position. Theodore Perry, Eastern's expert witness, testified that it would take at least nine seconds to raise the flaps and gear. Surviving passengers, however, testified that they had felt the thrust of the engines only three to five seconds before impact, thus indicating that the flaps and gear were raised before additional power was provided. These facts, plus other evidence introduced at the trial, support Judge Abruzzo's finding that the crew of EAL 512 deviated from the procedures for a missed approach established by Eastern's own Flight Operations Manual. It was within the province of the judge to conclude that the failure to follow these instructions constituted conduct which did not measure up to the proper standard of care. See, e.g., Citrola ...