The opinion of the court was delivered by: HOLTZOFF
The Court has before it three actions consolidated for trial, which have been brought against the United States under the Federal Tort Claims Act to recover damages for wrongful death and destruction of property resulting from a collision between a Viscount airplane of a commercial type, owned and operated by Capital Airlines Company, Inc., the plaintiff in one of these actions, and a jet airplane known as T-33, owned by the United States.
The collision took place on the morning of May 20th, 1958, near Brunswick, Maryland. The Viscount airplane, owned and operated by the plaintiff Capital Airlines Company, was on a regular scheduled commercial flight, known as Flight 300, from Pittsburgh to Friendship Airport, which is located near Baltimore, Maryland. It was proceeding in a regular controlled airway assigned to commercial traffic known as Victor Airway 44 and was carrying a number of passengers. Of the three consolidated actions, two were brought in behalf of the estates of the pilot and the co-pilot of the Viscount airplane respectively, to recover damages for wrongful death, and the third was brought by Capital Airlines to recover damages for the destruction of its aircraft. The Viscount airplane was at all times in communication with traffic control stations maintained by the Civil Aeronautics Authority, now known as the Federal Aviation Agency, and was strictly and closely following directions that it received periodically from the Control Center.
On the same morning the Government jet airplane known as T-33, a craft of much smaller size than the Viscount, was being flown on a training flight from a military airfield near Baltimore. It had progressed to approximately Harpers Ferry and had turned around and was returning to its station. It was flying considerably faster than the Viscount and in the same direction. It was gradually overtaking the Viscount. When the two airplanes were substantially over Brunswick, Maryland, which was on the direct route followed by the Viscount, the jet airplane was suddenly turned to the right by its pilot, for some reason that has not been explained, and the right tiptank of the Government airplane struck the Viscount on its left side at a point slightly aft of the cockpit. The two airplanes came together at an angle of approximately 45 degrees. Both airplanes were wrecked. The occupants of the Viscount were killed. The Government pilot fortunately parachuted to safety.
A brief summary of the prior proceedings in these cases, which have been somewhat unusual and exceptional, seems desirable. At the time of the unfortunate accident the Government plane and its pilot were on assignment to the Maryland National Guard. A preliminary issue was raised by the Government, whether the Air Force officer who was the pilot of the Government plane, was at the time of the collision acting in the scope of his employment by the United States. By an order made by the Court this issue was tried separately, before another Judge, and was resolved against the Government; namely, it was held that the pilot of the T-33 was at the time of the collision engaged in the performance of the duties of his employment by the United States and that consequently the United States was liable for his negligence, if any existed, on the theory of respondeat superior.
The case was then tried on the merits before this Court. It was found that the pilot of the Government plane was guilty of negligence, that his negligence was a proximate cause of the disaster, and that the pilot of the Viscount had been free of contributory negligence. Judgment was accordingly rendered against the United States in favor of each of the three plaintiffs, in the aggregate sum of $249,000 in favor of the estate of Vance Lewman Brady, who had been the pilot of the Viscount, and in the aggregate sum of $171,000 in favor of the estate of Paul Frank Meyer, who was the co-pilot of the airplane. In accordance with the pertinent Maryland law, the total amounts awarded to the two estates were allocated as between the dependents of the deceased who were entitled to portions of the recovery. A judgment was also rendered in favor of Capital Airlines for the value of the destroyed aircraft for the sum of $1,216,050. These judgments were entered on December 6th, 1961.
The judgments were affirmed by the Court of Appeals for the District of Columbia Circuit except as to the amount of damages awarded to Capital Airlines and the case was remanded for a reconsideration of that item of damages. United States v. State of Maryland, 116 U.S.App.D.C. 259, 322 F.2d 1009. The case was heard again by this Court solely on the issue of damages to be awarded to Capital Airlines and the amount awarded was changed by a judgment entered on October 11th, 1963, to $1,086,050. This judgment was affirmed, United States v. Capital Airlines, Inc., 120 U.S.App.D.C. 195, 345 F.2d 89. Certiorari was denied by the Supreme Court, 375 U.S. 954, 84 S. Ct. 445, 11 L. Ed. 2d 314.
In the meantime, actions in behalf of the estates of some of the passengers that had been killed in the wreck were brought in the Western District of Pennsylvania and likewise resulted in judgments in favor of the plaintiffs. The Court of Appeals for the Third Circuit, however, reversed the judgments on the ground that the pilot of the Government plane had not been acting as an employee of the United States at the time of the crash and that hence the United States was not liable for his negligence. State of Maryland for Use of Levin v. United States, 3 Cir., 329 F.2d 722. On certiorari the Supreme Court affirmed the judgment of the Third Circuit. Maryland for the Use of Levin, v. United States, 381 U.S. 41, 85 S. Ct. 1293, 14 L. Ed. 2d 205. The effect of this decision, which was rendered on May 3rd, 1965, was to sustain the ruling of the Third Circuit that the pilot of the T-33 was not to be deemed a Government employee at the time of the flight and, therefore, that the United States was not liable for his negligence.
Although the time for filing a petition for rehearing of the petition for certiorari in the present cases had long expired, the Supreme Court, nevertheless, on motion of the United States, reopened the matter, granted a rehearing and reversed the judgments to which reference has already been made. The plaintiffs, however, pointed out to the Supreme Court that at the trial they had pressed only the charge of negligence asserted against the pilot of the Government plane and that the charges of negligence against Government personnel in the Control Center that had been assisting in guiding the commercial aircraft had not been tried. Consequently, the Supreme Court made a somewhat unusual order, which, in addition to reversing the judgments, remanded the cases to this Court for disposition of the unresolved issues. The present trial has been had in accordance with this order of remand made by the Supreme Court.
Specifically, the issue presented at this trial is whether the personnel at the Washington Control Center should have detected the approach of the T-33 on their radarscope and should have warned the pilot of the Viscount of the danger of a collision, thereby enabling him to take immediate steps to avoid the disaster. To put this issue in somewhat different form, it was as follows: Was the T-33 visible on the radarscope at the appropriate time; and, if so, should it have been detected; and, if so, should the information have been immediately communicated to the pilot of the Viscount plane?
The Viscount was flying under what are known as instrument flight rules. They require the pilot to file a flight plan in advance with the proper Government station of what was then known as the Civil Aeronautics Administration and is now called the Federal Aviation Agency. The plan must be cleared by the Government station before the plane takes off. While in flight the pilot is in continuous radio communication with the proper regional Government station known as a Traffic Control Center. In this instance the Washington Traffic Control Center, located at the Washington National Airport, was in charge shortly prior to and at the time of the collision. The aircraft is being observed on the radarscope at the Center. Instructions as to changes of elevation and direction are continuously communicated to the pilot by the controller at the Center. In addition, information may be relayed to the pilot concerning obstructions and other airplanes in his vicinity that may possibly constitute a hazard.
The Government plane was being flown by what are known as visual flight rules. Such a flight is not subject to the direction of any Government Control Center and a plane proceeding in this manner is under no obligation to inform the Control Center that it is about to embark on a flight, nor is it obligated to announce its destination. In addition to giving appropriate signals or directions from time to time to aircraft flying on instrument flight rules, it is also the duty of the employees of the Control Centers to use due diligence to observe and detect on the radarscope any traffic flying on visual flight rules and other obstructions in the vicinity of the aircraft that is being controlled and immediately to warn the pilot of any impending danger. While this duty is not absolute and does not mean that the Government is an insurer of safety, nevertheless due care must be exercised to discharge it adequately. What constitutes due care under any circumstances necessarily depends in large part on the risk and hazard involved.
With commendable candor Government counsel stated that if the controller had detected a target on the radarscope that he felt was a hazard to an aircraft under control, he should have given that information to the Viscount aircraft. It has been held that the failure of a controller at a Control Center to perceive such other traffic and to warn the pilot of a controlled aircraft of the traffic, or of its approach, may constitute negligence for which the United States is liable under the Federal Tort Claims Act. ...