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July 7, 1988

MARTIN JOHN BEATTIE, et al., Plaintiffs,

The opinion of the court was delivered by: GREENE

 This lawsuit charges United States Navy air traffic controllers stationed at McMurdo Naval Station on Antarctica with responsibility for the loss of life sustained in the most serious air disaster in the history of New Zealand, when an Air New Zealand DC-1O passenger aircraft crashed into Mt. Erebus, killing all 237 passengers and 20 crew members. *fn1" The issue before the Court is whether negligence by the air traffic controllers caused or contributed to the crash. *fn2"



 Since geography plays an important part of this case, it is appropriate first to give a short description of the pertinent Antarctic geographical features. For a better understanding of these features and of the various flight routes, see infra, a sketch of the relevant area is included as an appendix to this Opinion.

 Ross Island, a part of the Antarctic continent, is located at a point where the Ross Sea meets the permanent ice shelf which extends toward the South Pole. The southwest corner of Ross Island consists of a long, narrow peninsula at the end of which are located two permanent scientific bases, one of them McMurdo Station. *fn3" McMurdo is the headquarters and major base for the United States Antarctic Research Program (USARP) which is operated by a division of the National Science Foundation. Ross Island is separated from the landfall to the west, known as the Victoria Land Coast, by McMurdo Sound, approximately 42 miles wide. The Sound is an open flat area of sea ice without any significant obstructions or protrusions.

 The United States Navy, operating as the Naval Support Force Antarctica (NSFA), is charged with providing logistical support to the National Science Foundation in the conduct of its research program efforts. The logistical support programs conducted by the Navy in Antarctica are also known under the nickname Operation Deep Freeze.

 Among other facilities, the Navy operates the Williams Field Ice Runway which is located somewhat less than three miles south southeast of McMurdo Station. *fn4" In connection with its operation of Williams Field and other landing areas, two air traffic control facilities are maintained at McMurdo Station: McMurdo Air Traffic Control Center, generally known as Mac Center, and Williams Field Ice Runway Tower/Ground Control Approach Facility, usually referred to as Ice Tower. These facilities communicate with each other by FM radio.

 Mac Center provides enroute flight guard, enroute flight following, air traffic control, and advisory service for aircraft operating south of sixty degrees south latitude. *fn5" Mac Center has HF (high frequency), VHF (very high frequency), and UHF (ultra-high frequency) radio communications equipment for use in communicating with aircraft. The Center has responsibility for IFR (Instrument Flight Rules) separation of inbound aircraft *fn6" until the aircraft are approximately 100 miles from the station, at which time control and responsibility are transferred to Ice Tower.

 Ice Tower provides VFR (Visual Flight Rules) terminal advisory service and air traffic control for aircraft operating on the ice runway (as well as for fixed wing airborne aircraft operating in the airport traffic area). Ice Tower is equipped with a Quad radar which includes an Airport Surveillance Radar (ASR) as well as a secondary radar. *fn7" Inbound aircraft are normally radar-identified by Ice Tower through the use of this secondary radar when within 100 miles out. However, direct guidance is possible only within 40 miles or less of Ice Tower by means of the primary ASR. See pp. 1075, infra. Radio communications with Ice Tower are through UHF and VHF frequencies.

 The ordinary route used by military aircraft toward McMurdo proceeds from New Zealand *fn8" down the center of McMurdo Sound. As the head of the Sound draws near, the descending aircraft turns left, that is, east, so as to line up with a McMurdo landing field, ultimately to land there. Air New Zealand's sightseeing flights -- of which the ill-fated Flight 901 was one -- would likewise fly to the head of McMurdo Sound, turn left, and then overfly the flat ice shelf south of McMurdo Station and Scott Base at low altitude so as to afford the passengers a clear look at the scientific bases and the surrounding territory. These sightseeing flights would then turn around, fly again past the bases, and up McMurdo Sound northward back toward New Zealand.

 Some of the flights took a more direct route to McMurdo, in the process overflying Ross Island itself, but they did so at a suitably high altitude to avoid the mountainous terrain on that island. The first of the two principal mountains an aircraft encounters on the way from the north along that route is the 5,380 foot Mt. Bird, the second, about fifteen miles further south, the 12,450 foot Mt. Erebus.

 The accident which is the subject of this lawsuit occurred when Flight 901 crashed into Mt. Erebus. The crash was the consequence of the combined effect of two deviations from the proper route: if the crew of Flight 901 intended to use the McMurdo Sound route, it was about 26 miles too far east; if it intended to fly directly over Ross Island, it was several thousand feet too low. *fn9" The basic question in this lawsuit is: who *fn10" was responsible for these mistakes?


 Negligence of Air New Zealand and of the Crew of Flight 901

 Were it not for the tragic outcome, the planning phase of Flight 901 could be described as a comedy of errors; some of these errors were perpetrated by Air New Zealand, *fn11" others by members of the flight crew.

 On November 9, 1979, nineteen days before the flight, Captain James Collins, *fn12" who was to be in command of Flight 901, his First Officer Gregory Mark Cassin, and other members of the crew, attended a briefing conducted by one of Air New Zealand's officials. The briefing included the circulation of a sample flight plan which directed Flight 901 to approach the McMurdo Station area by way of the customary route down the center of McMurdo Sound, followed by an eastward turn. *fn13"

 However, Air New Zealand also presented slides at the November 9 briefing which demonstrated the direct route to Ross Island, and it distributed files which contained the coordinates for a flight by way of that route. Additionally, on the morning of the flight, airline management handed out the official flight plan for Flight 901 containing those same coordinates, and the flight crew entered these coordinates on the aircraft computer. Compared to the sample flight plan of November 9, 1979, these later documents moved Flight 901 26 miles to the east, on a course directly toward Ross Island and, indeed, straight toward Mt. Erebus. A collision with Mt. Erebus was to be averted by having the aircraft fly at an altitude in excess of 16,000 feet.

 Although, as indicated above, Captain Collins was ultimately given papers showing the Mt. Erebus route for the flight, he was not orally informed of the change in course. However, since the crew had in hand the flight plan with the "Mt. Erebus" coordinates, if any member of the crew had plotted these coordinates on a map, he would have known that the aircraft's computer was taking the flight directly toward Ross Island and its peaks. Nevertheless, Captain Collins and his crew continued to assume that they were flying down the center of McMurdo Sound over flat sea ice.

 The problems which ensued, and the ultimate disaster, flowed directly from the events described above. *fn14" Additionally, the operational crew of Flight 901 acted unreasonably *fn15" during the flight in at least the following respects.

 First, the crew did not, at any time during the flight, plot the aircraft's actual position from its aerial inertial guidance system (AINS); had it done so, its members would have known precisely where they were located and that they were approaching Ross Island or were over it, rather than over the open McMurdo Sound.

 Second, alternatively, or in addition to the AINS, the position of Flight 901 could have been ascertained at any time during the flight by means of the aircraft's airborne radar; that, too, would have provided the crew, long before the crash, with a fix on where the aircraft was located and where it was headed. No such radar search was made.

 Third, Flight 901 descended below 16,000 feet, contrary to both prudent airmanship and Air New Zealand policy, *fn16" without first ascertaining what was there or following the other requirements for such descent. In fact, according to the witness John Paulus who flew his aircraft into McMurdo from the south at the same time as when Flight 901 was proceeding toward the Station from the north, arriving about thirty minutes after the crash, Mt. Erebus was perfectly visible even from a high altitude.

 Fourth, Beaufort Island, a prominent landmark north of Ross Island traditionally used for aerial navigation, appeared to the right of Flight 901 rather than to the left as it should have been had the flight proceeded down McMurdo Sound as the crew assumed; yet this faulty location with respect to an obvious landmark *fn17" did not alert the crew to its erroneous course.

 Fifth, in the face of deteriorating meteorological conditions, culminating ultimately in a whiteout, see pp. 1082, infra, Flight 901 proceeded resolutely ahead on its course rather than to seek an alternate destination.

 Sixth, five or six persons were milling around in the cockpit during the critical period, and passengers were also present or nearby, causing some distraction. Moreover, use could have been made of several of the more or less idle crew members for the performance of such tasks as navigation, communication, and radar control.

 In short, in addition to the negligent actions of Air New Zealand with respect to planning, much of the responsibility for the disaster rests with the crew of Flight 901 for actions it took in the course of the flight. *fn18"

 The Court now turns to the principal subject of this litigation - were the air traffic controllers also negligent, and was their negligence a proximate cause of the disaster? *fn19"


 Duty of the United States to the ...

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