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FISHER v. BELL HELICOPTER CO.

November 4, 1975

Joel FISHER, Plaintiff, and District of Columbia, Intervenor-Plaintiff,
v.
BELL HELICOPTER COMPANY et al., Defendants



The opinion of the court was delivered by: GESELL

 GESELL, District Judge.

 This is a civil action arising out of a helicopter crash. Negligence and breach of contract and warranty are alleged. All issues of liability were separated from the determination of damages and tried to the Court without a jury. After a full trial the Court now sets out its findings of fact and conclusions of law.

 I. FACTS

 On April 5, 1973, Juneau III, a helicopter then owned by the District of Columbia ("District") and operated by its Metropolitan Police Department, crashed while on routine patrol because the engine failed. The aircraft was being properly operated at the time and there were no unusual conditions affecting its flight. Plaintiff Fisher, who suffered injuries, was one of two police officers assigned to the flight. The helicopter was manufactured and had been sold to the District by Bell Helicopter Company ("Bell"). It was equipped with an Avco-Lycoming Corporation ("Avco") engine. Saguaro Aviation Corporation ("Saguaro"), the third defendant, is an independent contractor that performed the last major engine overhaul some eleven months before the crash.

 The engine in Juneau III was model VO540-B1B3, Serial No. SN 2247-43, a six-cylinder/vertical opposed reciprocating gasoline-powered type. This type of engine had been certified as air-worthy by the Federal Aviation Administration ("FAA") in December, 1960. The engine failed because one of the two bolts used to clamp the connecting rod of the sixth cylinder to the crankshaft parted, which in turn caused the rod to shatter as it blasted a hole in the side of the engine. When the engine failed the helicopter was not airworthy and should have been grounded because, contrary to a mandatory FAA air directive, the connecting rods were not bolted with shotpeened bolts and the bearings were not chrome backed. This situation resulted from a complex series of events which will be outlined.

 Juneau III was initially obtained by the District for police use under a lease-purchase agreement with Bell dated June 22, 1971. While this agreement was in effect Bell was responsible for all maintenance on both the engine and airframe. Two other helicopters of the same model were leased by Bell to the District at the same time and Bell placed its FAA-qualified mechanics at police facilities in the District where most maintenance work, other than major overhaul, was done. Juneau III was kept on regular police air patrol from the outset.

 In May, 1972, a major overhaul of the engine was required under the then-standard maintenance schedule and the engine was shipped to Saguaro at Bell's instance for this work. Saguaro overhauled the engine and completed the job on May 10, 1972. The overhaul required, among other things, that the connecting rods and bearings be replaced. Saguaro used connecting rod assemblies ordered by it from Bell which were sent to it by Avco on Bell's order. The assemblies, designated #77450, including the one placed at the sixth cylinder, had bolts that were not shot-peened. Of the twelve bolts required for all the cylinders, only two were shot-peened. Bearings which were not chrome backed were also used. The engine was promptly reinstalled in Juneau III and operations by the District resumed.

 On November 4, 1972, the District exercised its right to purchase under the lease-purchase agreement and became the owner as well as the operator of the helicopter. Thereafter the District's maintenance mechanics performed all maintenance work and Bell was relieved of maintenance responsibility. The District's mechanics were also FAA rated and, in fact, two former Bell mechanics stayed on as employees of the District to help carry on this work.

 On May 26, 1972, immediately after the major overhaul by Saguaro, Avco's service bulletin 303B issued. It covered certain VO540 helicopter engines and extended the recommended time between overhauls from 900 hours to 1200 hours. It also recommended that a #77450 rod assembly with shot-peened bolts be installed in all engines having 550 hours within the next 50 hours, or earlier, at owner's discretion. The bulletin stated, among other things:

 REASON FOR CHANGE:

 
The heavy reinforced connecting rod assemblies with phosphated bearing surface treatment (P/N LW-10776) to minimize galling has not shown improvement in extending connecting rod service as intended.
 
The use of reinforced heavy type rod P/N 77450 which does not have the phosphate treatment in conjunction with bearing inserts with chrome backing is recommended. Also, the 77450 connecting rod assemblies are furnished with improved stretch type bolts of higher hardness with the addition of surface shot-peening to improve and minimize bolt fatigue.

 On August 11, 1972, and again on November 3, 1972, new Avco bulletins 303C and 303D were issued. Bulletin 303C expressly applied to the engine in Juneau III. Each bulletin contained the same language as that quoted from 303B, above, and recommended compliance within the next 50 hours on all engines having 550 hours of operating time. Both these bulletins noted that "remanufactured engines shipped February 1, 1972 and after incorporate rod assemblies 77450 and are not subject to the requirements of this bulletin."

 On August 11, 1972, the engine in Juneau III had logged 134 hours and by November 3, 1972, it had logged 552. By January 20, 1973, the engine had logged 600 hours. It still had rod bolts that were not shot-peened and the bearings were not chrome backed.

 On February 1, 1973, effective February 28, 1973, the connecting rod installation recommended in these prior Avco bulletins was made mandatory by FAA directive 73-5-1. This directive required that all engines that had logged 550 hours or more must have the new #77450 connecting rod assemblies within 50 hours. At this point Juneau III's engine had already logged 772 hours. The directive thus required the new connecting rods be installed not later than 822 hours. The engine logged 822 hours by March 15, 1973, some three weeks prior to the crash. At time ...


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