with its left wing down. The crew made no effort to abort the flight, although this could have been accomplished safely at any time before the plane reached the rain wall.
The plane used for flight 112 was in sound operating condition. It was not overloaded and its instruments, including radar, were in good working condition. It was operated from the proper runway.
It was the thunderstorm which enveloped flight 112 immediately at takeoff that caused the plane to crash. The storm had typical manifestations of thunder, lightning, hail, gusts of wind, and turbulence. The backdraft or eddy, a typical aspect of such storms, contributed. There was a 180 degrees wind change involved which necessarily caused the plane to lose buoyancy. This, coupled with the violent turbulence of the storm, the added weight of the rain and other factors, forced the ship out of control and into a crash, in spite of the combined efforts of the crew.
THE CLAIM OF NEGLIGENCE
The parties have vigorously contested the responsibility of the tower and the crew under the circumstances outlined above. The United States contends that the tower is little more than a traffic policeman operating with almost no discretion and merely applying formal rules designed to govern the movement of outgoing and incoming planes. It is the crew, the United States says, that determines whether and how the flight will be made. Plaintiff asserts that quite the contrary is the case; that the flight is governed by tower instructions from takeoff to landing at destination; that minimum takeoff limits are established by Government regulation, which the crew must obey; and that the tower has the ultimate responsibility for safety at the time of takeoff, in flight and at landing.
Neither of these positions is completely correct. Our system of air traffic regulation is more sophisticated and better designed to protect the public and avoid human error than either of the categorical views suggest. Whenever a plane is moving, whether on the ground or in the air, the captain has the final and ultimate responsibility. He is, however, in constant contact with the ground and guided by the Government control facilities located at several points. The pilot can refuse to take off when cleared but cannot take off if not cleared. He can request a different runway or a different routing and, if cleared, can proceed accordingly. If he encounters weather difficulties en route he can ask permission to go in a different direction or to a different level and, again, if cleared, can proceed. Where his various clearance requests are consistent with air traffic regulations and established safety procedures, the United States facilities give the permission he seeks. When permission is not granted for safety or traffic control reasons, the pilot continues to fly under conditions set from the ground.
In short, there is a close working relationship contemplated between the Government-operated tower, control centers and weather facilities on the one hand, and crew on the other. The responsibility is mutual and coordinated at all times. Each, however, has superior knowledge in some respects over the other. The crew knows the condition of the aircraft, its capabilities, and must deal with the unusual and unexpected in flight. The tower, in this age of electronics, has the superior knowledge and capability where questions of traffic control and weather are involved. While crews have weather training and know that "the air is an unforgiving element," those in the tower, who also have weather observation training and who are in instant contact with weather stations in the area, have available more instruments, more information and more weather knowledge. The crew is highly dependent on and relies on accurate and sophisticated weather guidance from the tower, a responsibility which the Government has undertaken and must fully and completely carry out.
The Government's responsibility is to promote air safety. This responsibility includes a duty to promulgate rules and regulations to provide adequately for safety in air commerce. 49 U.S.C. § 1421. A very detailed series of procedures and regulations have been established by the Government under this general delegation from Congress governing the activities of weather stations and tower control personnel. Only a few of many need be cited to illustrate the pervasive and all-inclusive nature of the responsibilities the Government has undertaken in this regard. For example, the Air Traffic Control Manual issued by the Federal Aviation Administration specified, among other things, in Section 352.1 that:
"Whenever storm areas such as apparent thunderstorms, rain showers or squall lines can be discerned on the radar display, information concerning them shall be provided to pilot when considered advisable by the controller."
Similarly, the Facility, Equipment and Operation procedures with respect to visibility reporting procedures include the following two directives:
"471.1 Visibility observation shall be taken from the control tower during periods when the visibility at the usual point of observation is less than 4 miles. Such observations shall be taken by weather station personnel when available, or by control tower personnel when weather station personnel are not available. * * *