LAYTON, District Judge.
On June 20, 1956, at 3:18 A.M., a Super Constellation Airplane (hereafter called AMS) owned by Linea Aeropostal Venezolana (hereafter called LAV), a Venezuelan airline, left Idlewild Airport on a non-stop flight to Maiquetia, Venezuela. Aboard was a full complement of passengers and crew including several extra crewmen. At 4:30 A.M., AMS signaled Idlewild that it was returning to New York with Engine #2 "off."
According to libellants' theory, the accident happened in this fashion. Shortly before 4:24 A.M., an overspeed developed in the #2 engine. That is to say, the propeller was turning at a rate
As an alternative theory, or perhaps simultaneously, libellants say the #2 propeller which cut through the seat also cut through the floor immediately below the seat and into a "belly" tank of gasoline just below the floor. This tank was nearly empty and, thus, full of dangerous fumes. The gashing of this metal tank by the metal propeller admitted air into the fumes and at the same time created sparks which exploded the tank and set fire to the gas plumes as well as the tank itself.
It should be observed at this point that the case at bar is not against LAV, the airline, or Lockheed, the manufacturer of the plane, but, rather, against United Aircraft Corporation (Hamilton Standard Division, hereafter called United), the manufacturer of the propellers, upon the following theories:
In summary, libellants contend that no matter what actually took place after the initial overspeed, it was the overspeed and inability to feather which set in motion the events culminating in the loss of AMS, and but for which the accident would never have happened.
United defends on several grounds. First, while admitting the possibility that the accident happened as charged, it contends that libellants fell far short of proving it by a preponderance of the evidence. Second, it takes the position
United, also, denies negligence on either of the grounds charged.
DANGERS INHERENT IN OVERSPEEDS
Preliminary to any step by step analysis of the chronological occurrences preceding this accident, one must have some basic understanding of the dangers inherent in a prolonged engine overspeed followed by an inability to feather the propeller.
In general, the expert testimony for both sides agreed that any prolonged overspeed in excess of 3600 RPM (and probably less) is exceedingly dangerous because of the strong likelihood of disintegration of the engine and its component parts (LX 67), decoupling
Since the overspeed on AMS happened at about 19,000 ft. and lasted approximately fifty minutes, there is the strong probability that all of these dangerous conditions prevailed on AMS (LX 67). Even a layman can readily appreciate the critical danger resulting from a three-bladed propeller, 15 feet in diameter, attached to a heavy metal hub, suddenly whirling free of the plane at, say, 3000 R.P.M. The course the propeller will take is completely random (RP 3189). It may drop straight away and down as in the Cut Bank incident (LX 66);
Returning, for a moment, to the possibility of a decoupling in this case, there seems to be no real disagreement among the witnesses that a decoupling in fact took place. This arises from the fact that AMS reported its BMEP gauge and tachometer as reading zero while the propeller was still windmilling. Experts from both sides accepted this as meaning that the propeller had decoupled (RP 276; 674; 3187, LX 33).
ANALYSIS OF LIBELLANTS' EVIDENCE
An analysis of the messages transmitted by AMS as well as other evidence convinces me that libellants have proved by a preponderance of the evidence that AMS developed an overspeed in the #2 engine at about 4:24 A.M., June 20, 1956, that the propeller could not be feathered and the pilot decided to return to New York. During the next fifty minutes there is fairly general agreement by both parties that AMS:
It is also agreed that at 4:46 A.M., AMS signaled an emergency due to the overspeed and asked assistance.
A few seconds later, four seconds according to Fisher and seven seconds according to Hancox, AMS became a ball of flame. It veered sharply to the right, went into a shallow dive, appeared to gain altitude for a very short while and then dove over and fell into the sea, exploding upon impact. During the minute or so between the appearance of the
The plane was never recovered. Next morning's search revealed only three significant finds—a double airplane seat and two bodies, each with a leg off.
Significantly, this seat and the two DeArmis bodies were recovered three miles from the main scene of the wreckage. According to Gates (RX 39), Lockheed's expert and United's witness:
The respondent sharply criticizes this theory as based on pure speculation. However, I find it persuasive for two reasons. (1) It seems to have been tacitly agreed that it could have happened but United took the position that there was not enough evidence to take the case out of the realm of mere speculation. (2) Reducing the thing to its simplest form, we know:
In any careful analysis of this happening, the mind is always thrown back to the salient fact that the seat and two DeArmis bodies were found three miles from the main scene of the wreckage.
There is no precise explanation how the seat and two bodies were ejected from the plane prior to the crash. The propeller no doubt would have opened a sizeable hole in the fuselage. Also, one of the blades whirling down on the seat in a clockwise motion (facing forward)
Moreover, the seat itself gives the one main clue as to whether or not the propeller separated. If the cut through the seat can possibly be accounted for as the result of the general break-up of the craft as it crashed, (which is doubtful) then how are paint markings on the seat closely resembling the paint markings on the tips of the propeller blades to be explained? And why was the seat three miles from the main wreckage? And why was this the only seat found?
Gates, who had charge of the investigation, was Lockheed's own employee. Lockheed sat with United's representatives throughout the trial. Their experts testified for United. Lockheed is a defendant in another suit originating out of this crash. Gates could have been easily produced as a witness had United wished. He was not. It must be assumed that his theory that the propeller separated and crashed through the fuselage, #4 seat and possibly on down into the #5 belly tank is entitled to substantial weight. Certainly, United did not attempt to discredit Gates directly. Nor did United attempt directly to discredit the assumptions of its own employees, Hupp and Metty, that there was a decoupling of #2 engine. And there was general agreement among the experts that an engine fire is a likely result of a prolonged overspeed and decoupling. (RP 1825; 2929.) This is also borne out by the Appendix. Moreover, a propeller separation is apt to follow a decoupling. (RP 1806.) The fact that never before had there been a known incident where a propeller separated and crashed into the cabin is completely beside the point. The Memphis incident speaks eloquently of the close call in that case and the tragedy which might have happened there had the propeller flown sideways instead of upwards.
ANALYSIS OF UNITED'S EVIDENCE
Aside from its contention that libellants failed to prove their case by a preponderance of the evidence, United advances one additional negative reason why the accident could not have happened as libellants contend and one affirmative theory as to how the accident might have happened in a manner wholly different from libellants' theory.
First, United points to the Lockheed experiment in fuel dumping together with certain wind tunnel tests conducted by the Lockheed expert, Dr. McLennan (LX 21; LX 28), and argues that since at speeds in excess of 120 MPH nothing but a continuous, internal ignition source will ignite gas plumes while being dumped, and since there is no evidence of such a continuous source, the accident could not have happened as libellants suggest.
Secondly, United lays great emphasis on the fact that the crew of the Coast Guard plane saw a blue fire on the right side of AMS just before she became engulfed in the orange flames, indicating that the ignition source could not have been from fire in the #2 engine as libellants argue. While there is no certainty as to what the source of this fire was, according to United it not only was on the side of the plane away from #2 engine but, moreover, the color of the flame strongly suggests that it was a fire inside the starboard wing caused probably by the leakage of gas into the wing from
In an effort to explain the loss of AMS, Lockheed, the manufacturer of the plane, conducted exhaustive tests. It sent a plane aloft with wing tanks loaded with colored water in order to see if any portions of the plane were drenched with gasoline during the dumping process. Cameras were mounted at various points on the plane. At about 9000 ft., the dump chutes were opened, the plumes of colored water streaming out behind the plane clearly could be seen, and the plane was put through various maneuvers in order to determine the amount of impingement of fluid upon the frame of the plane. The plane was carefully examined upon landing and the amount of impingement was demonstrated to have been negligible. Then Dr. McLennan mounted a model airplane wing in a wind tunnel and conducted exhaustive tests under conditions simulating fuel dumping in the air. In these tests, gasoline was sprayed out behind the model wing just as in a normal gas dumping operation and a source of ignition was supplied by an electric spark which could be turned on by pressing a button. At speeds in excess of 120 MPH, continuous releases of spark would momentarily ignite the gas plume quite violently. Nevertheless, the fire would not creep back up the slipstream to the wing and, moreover, the speed of the wind rushing over the wing would, after a brief interval, extinguish the flame. Dr. McLennan also conducted a test with an internal wing fire which did result in maintaining a fire on the wing surface. His final conclusions were:
Thus, United reasons, there being no visible source of continuous ignition on the portside, AMS could not have been destroyed as libellants theorize. But United fails to rule out the probable existence of a fire in the motor as supplying a continuous source of internal ignition. Specifically, if the propeller separated, the likelihood of a magnesium fire bursting out on the nose cone and the flames being instantly swept back over the wing into the dump plumes and igniting them was conceded by Dr. McLennan as a kind of source of continuous ignition which could have caused this fire (RP 3621; 3622). Dr. McLennan also conceded that at the speed AMS was traveling, flames bursting out on the nose cone could be swept back into the dump plume in a fraction of a second. Thus, contrary to what United argues, a fire inside the #2 engine could have been, and probably was, the source of ignition for the orange fire that engulfed AMS.
We come now to the blue fire noticed by the crew of the Coast Guard plane just before AMS burst into a ball of orange fire. This is perhaps the most mysterious phase of the case. Three members of the crew, intelligent, conscientious witnesses, testified that a few seconds before AMS burst into a ball of fire, an intense blue-white flame was seen on the right side of AMS silhouetting the fuselage, extending over and below the fuselage and back as far as the empennage. So certain were the witnesses that AMS was on fire before the appearance of the orange ball of fire
While superficially persuasive, this theory of the happening of this accident does not stand closer examination. As to the blue fire, the crew did insist they were not mistaken. However, they admitted the possibility of error and conceded that the only means definitely to verify or reject their impression of fire was for Lockheed to conduct a further fuel dumping experiment at night by moonlight. Unfortunately, this was never done. An experiment conducted by libellants' counsel in Court with a model plane demonstrated how the crew might have been misled into thinking the blue light was confined to the right side of the plane alone. Of great importance is the testimony of Captain Fisher, who had an equally good view looking directly at AMS. Just after AMS received permission to dump gas, he saw "a large white puff behind him [AMS] * * * a steady trail of mist which was coming out in kind of a bubbling, rolling motion beneath the airplane, under the tail section, and extending aft approximately the length of the fuselage * * * with the moon reflecting on it, the mist had a silvery appearance."
There are two immediate reactions to this testimony:
Moreover, a leak in the right wing due to a faulty dump chute is sheer speculation wholly unsupported by any evidence.
I am reluctantly forced to the conclusion that what the crew of the Coast Guard plane saw was a bright white or silvery mist which by some trick of light had a somewhat bluish appearance. It was not fire but gave the illusion of fire (RP 3632; 3633) because of the luminescence and the billowy or rolling motion of the gas plumes.
Not only can respondent's version of this happening be explained away at least to a considerable extent, but to accept it is wholly to discredit (1) the probable source of ignition being fire in #2 engine in connection with the plumes of raw gas immediately behind; (2) the testimony as to the bodies being those assigned to seat #4 just aft of the #2 propeller; (3) the presence of the two bodies and the seat three miles from the main wreckage; (4) the slashed seat "cut from top to bottom by a downward, angular smashing blow" and (5)
Then there is the additional factor favoring libellants' version of the affair that, if the propeller cut down through the seat, and it probably did, it would in all likelihood have cut through the floor and #5 belly tank causing an additional explosion which not only could have furnished the, or one of the, ignition sources for the gas plumes but, at the same time, the force which blew off the wing (if in fact a wing did separate) and ejected the seat and bodies from AMS several miles before it struck the sea.
CONCLUSIONS ON CAUSATION
No one will ever know with certainty what caused this accident. The plane together with other valuable evidence lies on the bottom of the sea. It is not to the credit of the Venezuelan government that the subsequent inquiry was abruptly terminated, and the reasons why the Civil Aeronautics Board did not continue the investigation, at least to some extent, are not entirely clear. The accident may have been caused by factors altogether different from those argued by either side or it might have happened as United says. However, for libellants to prevail in a case such as this, based largely on circumstantial evidence, they need not eliminate every possible contrary conclusion so long as the record viewed as a whole shows by a preponderance of the evidence that their theory is more than likely correct. Compare United States v. Allard, 240 F.2d 840 (3d Cir., 1957). The most painstaking analysis of the record convinces me, and I so find, that the libellants have demonstrated by a preponderance of the evidence that this accident was the result of a prolonged overspeed and inability to feather the propeller, leading to a decoupling, fire, and a separation of the propeller. Simultaneously, the propeller crashed through the fuselage dislodging the #4 seat, ejecting it and its occupants, and gashed into the #5 belly tank which exploded. The flames from the #2 engine were swept back over the wing directly into the raw plumes of gasoline being dumped from the port dump chutes, igniting them. Also, the flames from the explosion added to and increased the holocaust resulting in the total loss of the plane.
THE NEGLIGENT CONDUCT
Having found that libellants have established by a preponderance of the evidence that AMS burned and crashed as above described, we now proceed to inquire as to whether the record supports the charges of negligence against United.
The first charge of negligence
Before analyzing the facts bearing upon this series of charges, it is desirable to fix the proper standard of care to which the manufacturer of component parts of airplanes intended for sale to airplane manufacturers is subjected.
Prosser, Law of Torts, § 33, p. 147 et seq., states the rule to be that the standard of care required is reasonable care, varying with the degree of apparent risk in each case.
This rule of conduct was incorporated into the body of Admiralty Law in Sieracki v. Seas Shipping Co., 149 F.2d 98 (3d Cir., 1945), aff'd, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. In that case, the Maritime Commission awarded the contract for the building of a ship to Bethlehem Steel Co. Bethlehem Steel awarded the rigging contract to its subsidiary, Bethlehem Sparrows Point Shipyard, Inc. A part of the rigging subcontract required Bethlehem Sparrows Point to install a ten-ton boom and tackle at No. 5 hatch. The rigging contractor purchased a shackle, a component part of this boom, from an unnamed manufacturer which was not sued. The ship was delivered to Seas Shipping Co., another defendant. The shackle thereafter broke, injuring a longshoreman who was engaged in unloading and who sued Seas Shipping Co. which, in turn, joined the two Bethlehem companies as defendants. Seas Shipping Co. was absolved from negligence but the two Bethlehem companies were held liable.
In this connection, Judge Goodrich speaking for this Circuit said, inter alia:
In substance, then, the Third Circuit Court agrees with Prosser. What Judge
Insofar as concerns this case, United, as the manufacturer of the propeller, is the reasonable man. The important considerations involve (1) the recognizable or foreseeable risk, (2) the degree of danger involved and (3) whether Mr. Noel was within the ambit of the protection of the duty imposed.
As to the first consideration, it has already been established that prior to June 20, 1956, there existed a number of instances of overspeeds accompanied by inability to feather resulting in decoupling, fire, or a propeller separation or a combination of the three.
Reluctantly, also, it becomes necessary to analyze a curiously persistent course of conduct on the part of United during the earlier phases of discovery in this case which on the one hand obstructed the obtaining of information (for instance see RP 2696 et seq.; 2732 et seq.) on overspeeds and on the other led to the actual destruction of records which may well have contained relevant information on overspeeds. In 1960, this Court required United to list all malfunctions of its propellers of certain relevant types occurring within specified periods. United filed a motion asking that the order be modified or otherwise it would take six key men one-quarter of their time eight months to gather this information. The Court unfortunately permitted witnesses from United to testify for two full days on this question. It is my present conclusion that much of the testimony heard was misleading with the result that United was granted certain discovery relief to which it was not entitled. Furthermore, during the progress of this very case an undisclosed
Accordingly, I draw the inference that there were many other cases of overspeeds which libellants were unable to discover and put into evidence. See also LX 156 (RP 3001). In addition, while no records of overspeeds and inability to feather among military aircraft were available, it was estimated by United's own witnesses that such failures would at least equal and probably exceed the number of failures among civilian airlines.
In all, I have little doubt that libellants have proved by a preponderance of the evidence that United had notice of so many instances of overspeeds where the propeller could not be feathered that the likelihood of the loss of a plane from this occurrence could well have been anticipated.
As to the second consideration, the degree of danger involved in such overspeeds and inability to feather, there is no doubt that measured in terms of the potential danger to human life, United was clearly on notice that an inability to feather following an overspeed could lead (a) to a decoupling, (b) fire and (c) propeller separation. These facts have been found. It requires no expert testimony to imagine the terrible consequences of a fire (with or without an accompanying propeller separation) on an airliner 20,000 ft. in the air. And it is no excuse to argue that never prior to June 20, 1956, had the loss of a plane or a passenger death been attributed to an overspeed and inability to feather. The Appendix discloses at least 9 instances prior to this date where fires resulting from overspeeds and inability to feather caused emergency landings. That no life was lost was sheer luck. Incidentally, the accident here was followed within six months by three other serious incidents although no lives were lost. [6/26/56; 10/16/56; and 12/12/56. LX 78.]
As to the third consideration, no time need be wasted in concluding that Mr. Noel, a passenger on AMS, was a person within the ambit of the protection of the duty imposed upon United.
From these facts, I conclude that United was obligated to employ a high degree of care and caution in the design and manufacture of its propeller governor and governor systems.
I have found that overspeeds followed by inability to feather were happening with sufficient frequency to serve notice on United that the extreme dangers inherent in these situations placed upon it the duty of using a high degree of care in developing a more dependable propeller system. Moreover, inherent in this was the duty to act with promptness.
Did United meet these obligations in such manner as to absolve itself from all blame? I reluctantly conclude that it did not. This is not to say that United did nothing about the situation. Three approaches to the problem were under relatively continuous experimentation and in a greater or lesser degree of development at the time of this accident. They were Integral Oil Control (I.O.C.),
1. Integral Oil Control
This was used by the Military as of 1956. It was a design arrangement which collected in one package the various control functions of the governor, including feathering, having its own separate oil supply. It solved the contamination problem associated with using engine oil. (LX 154, P. 1.)
2. Pitch Lock
This is a mechanism which detects when an overspeed has started or is about to start, and prevents the blade angle from going to low pitch by locking oil in front of the piston. Thus, the purpose of this mechanism is to prevent overspeeds from getting too high. Pitch Lock does not prevent overspeeds. It limits them. (Pond 2575.) Desire to develop a pitch lock mechanism dates back to early 1940's. (Rhines 1916, et seq.)
3. Separate Feathering Valve
A system whereby auxiliary engine oil used for feathering is routed not through the governor pilot valve (which may be stuck), but through a separate valve that is only used for feathering. This obviates problems that have their source only within the governor itself. Other problems which make feathering impossible are not corrected by a separate feathering valve. Note that engine oil is still used with the separate feathering valve, unlike I.O.C. which has its own oil. (Rhines 1945, et seq.)
I.O.C. seems not to have been the ultimate answer although some units were sold to the Military in 1956, and TWA installed others on some of its planes primarily because of the double acting feature which would permit the propellers to reverse for landings on short fields. But the airlines as a whole showed little interest in it. This may have been for several reasons. It seems to have been (a) too expensive (for instance Pan American refused it for that reason), (b) too heavy, (c) too complicated and badly located (RP 1908). Moreover, although Rhines felt highly of it, the device may not have been as effective as believed because it is significant that while the Civil Aeronautics Authority issued Airworthiness Directives on Pitch Lock and the Separate Feathering Valve, no Directive was issued on I.O.C.
I shall consider the separate feathering valve only briefly by way of illustration as to how slow United's progress was in solving the problems. This is because I was unable to find by a preponderance of the evidence that this accident was caused by governor failure. As previously noted, separate feathering was designed to cure feathering problems which originated in the governor only. It was sufficiently effective that the CAA in 1958 required its installation on all prop planes. While, as stated above, I have not been able to find convincing evidence that the overspeed in this case originated in the governor, nevertheless, referring to the Appendix, it is apparent that at least 27 of the approximate 119 known overspeeds followed by inability to feather originated in governor failures. Grindle, libellants' expert, felt that 90% of all overspeeds originated there. I do not accept this but am of the view that a substantial number of overspeeds originated in the governor due to the blocking of a governor valve from contamination in the hydraulic system. But despite the fact that this contamination problem had been known since 1950 at least, it seems a reasonable assumption from the evidence (RP 2568) that United did not even start to work on the separate feathering valve until after this accident happened on June 20, 1956.
Pitch lock, as mentioned elsewhere, did not accomplish feathering. It limited overspeeds. It was also sufficiently effective to be the subject of a directive from the CAA in 1958. It had been fully certified by CAA and was in partial operation prior to this accident. It seems to have been particularly effective during cruising where this and most of the
One answer to the slowness with which United was dealing with the feathering problem including pitch lock may be found in the development of the Lockheed Electra. This plane was equipped with United (Hamilton Standard) propellers and governors upon which the very latest improvements and safety devices including pitch lock were incorporated. In connection therewith, United issued a brochure (LX 84)
In view of the high standard of care placed upon United in the manufacture of its propellers, it would be expected by way of defense that there would be fairly convincing evidence both oral and written demonstrating that at some point during the early 1950's United's engineering management, recognizing the danger to human life involved in the inability of its governors to feather during overspeeds, decided upon an accelerated program to produce acceptable alternative safety devices; that engineers, technicians and sufficient funds were made available and the program put in charge of a responsible head with directions to push the program vigorously; that despite the use of all reasonable efforts, nothing more could humanly have been accomplished than was accomplished. Again, it might be thought that evidence would be forthcoming to dissipate the inference that United's efforts put into developing the new propeller system for the Electra in no way detracted from a vigorous program to develop and make available reasonable safety devices for the existing propeller systems. In effect, there was no such evidence. Rather there were two vague and very general statements by Mr. Rhines reciting the history of United's efforts in connection with pitch lock and separate feathering (RP 1953 et seq. and RP 1927 et seq.). Neither of these statements, nor anything else found in the record, demonstrate that United's conduct was commensurate with the high degree of care required under the circumstances of this case.
Assessing United's development program for the correction of overspeeding problems against the background of the standard of care imposed upon it by law, I am forced to the conclusion that United was negligent in that it should and could have produced pitch lock for use on Constellation type planes prior to June 20, 1956, and had it done so, the ability of AMS substantially to control the overspeed would have been materially increased.
In so concluding, I have tried to make due allowance for the many vexing and complicated problems with which a big business is faced. I am certain that overspeeds followed by inability to feather were by no means the sole problem remaining to be solved on United's drawing boards. There were, no doubt, many such problems, many development programs, huge government contracts, and a myriad of other details constantly awaiting solution. Above all, there is the stockholder demanding a reasonable return on his money. In addition, it must be freely conceded that United as of 1956 had gone a considerable way towards a reasonable solution of the overspeeding problem in developing pitch lock. Yet, United (or at least its Hamilton Standard Division) is a relatively unique concern, manufacturing as it does, over 90% of all propellers and propeller systems. Having a virtual monopoly, it was in a position, unlike highly competitive industries, to schedule its operations in a manner most favorable to its overall operations program without the threat of losing business. Moreover, whether one likes it or not, hand in hand with the manufacture of airplane propeller systems goes the duty of employing a high degree of care in providing a troublefree system in order to protect the public from the grave dangers inherent in malfunctions occurring in airliners many thousands of feet high in flight. And in cases such as this, where a recurrently dangerous situation such as inability to feather following overspeeds has only been partially solved, it would seemingly be the duty of the maunfacturer to bring this fact and all its attendant details home, at the very least, to the CAA so that this powerful agency could assess the situation and take proper steps in behalf of the public interest. At any rate, leaving this point aside, if there were extenuating circumstances tending
It would be unfair to say that United did not have the problem of feathering constantly in mind or was doing little or nothing about it. It would be equally unfair to a potential passenger on a Constellation type plane in June, 1956, to say that he was about to board a plane having a propeller system equipped with every safety device which reasonable engineering minds could have devised and had on the market in view of the existing circumstances.
At the risk of repetition, I cannot avoid the conclusion that had pitch lock been installed on AMS as of June 20, 1956, it is more than likely that it would not have crashed. (Pond 2752; LX 53, P. 3; Grindle RP 699.) It is my conclusion that libellants have adduced evidence which would satisfy an impartial mind that they have met their burden of proving by a preponderance of the evidence that this accident happened just about the way they claim it did and, moreover, that United fell short of meeting the exacting standards of care required under these circumstances.
The weakness of United's defense was most apparent in two respects: (1) In view of the high standard of care imposed on it in the manufacture of its propellers and propeller systems, the evidence fell substantially short of demonstrating that it had done everything reasonably possible not only to solve the feathering problem but to manufacture and make available for installation safety devices such as pitch lock;
At the risk of some repetition, the defenses of United will be briefly listed and disposed of:
At the outset, it is pertinent to say that in cases of this sort damages are a highly speculative item. A man's previous record of good health together with a long life expectancy does not preclude his being killed in an automobile accident the next day, and a high earnings record for the five years previous to his death does not rule out a sharply decreased future income due to unforeseen economic or health conditions. Therefore, it is not proposed to approach the subject of an award of damages here with slide rule precision. O'Toole v. United States, D.C., 140 F.Supp. 672, aff'd, 242 F.2d 308 (3d Cir., 1957).
Initially, it is my general view that much too bright a picture has been painted both of Mr. Noel's life expectancy and economic future.
Six years prior to his death, Mr. Noel weighed 265 lbs. He was about 5' 9" tall. He was fat to the point of obesity. He went to Mayo Clinic about 1949. He was advised to take, or did take, an extended rest of from 4 to 6 months. Presumably, he was in a serious condition. He was a mild diabetic. He gradually reduced his weight to 243 lbs. in 1953. There is hearsay testimony to the effect that at the time of his death his weight was down to 200 lbs. This testimony was given by his wife and was based only on what Noel told her. It is of but the slightest probity.
In addition, Mr. Noel was an extremely energetic and restless man. A close
Mr. Noel was an excellent salesman, capable of making a large income. In the five years immediately preceding his death, his income ranged from $35,000 to $108,000, as follows:
1951 $ 35,000 1952 60,000 1953 60,000 1954 85,000 1955 108,000
But just prior to his death, he had liquidated his own business for $400,000. He was engaged in a heavily losing business venture in Texas. He was just embarking on a completely new business venture in Venezuela which, at the time of his death, had not begun operations.
Mr. Noel was very obviously a heavy spender. Between 1951 and the date of his death, his luxurious mode of life coupled with heavy business losses exceeded his entire five previous years' earnings by $100,000. While he had discussed the liquidation of the losing Texas venture, we do not know when or at what further loss this would have been accomplished, but it probably would have been deferred as long as possible because the sole purpose of this business was to provide a livelihood for Mr. Noel's father and brother. We do know he was starting a completely new, untried business venture in Venezuela, a risky sort of enterprise in view of the history of political instability and confiscation of foreign assets common in most South American countries.
In this connection, also, it is to be emphasized that not one iota of evidence was introduced as to the background, capitalization, contracts or prospects, immediate or future, of the Venezuelan venture. The combination of the relatively heavy and continuous losses on the Texas business and the complete absence of any proof as to the probability of success of the Venezuelan venture strongly suggests the unlikelihood of any net income to Mr. Noel for a number of years during which he might have had difficult times and been forced to live on capital. It is entirely within the realm of possibility, and I so find, that it would have taken Mr. Noel five years
Of this sum neither Pat nor Sharon would be legally entitled to anything because of the finding that Mr. Noel would have had no net earnings for 5 years after his death. However, Marsha would have been entitled to 6 years of maintenance and support and, in addition, a college education. I therefore find that, reduced to present worth at 4%, Marsha would be entitled to $30,000.
Because of his lavish way of life, I cannot conclude that Mr. Noel would have left any substantial estate
AWARDTotal damages (reduced to present worth at 4%) $387,387 Patricia ........... Sharon ........... Marsha (reduced to present worth at 4%) $ 30,000 Mrs. Noel—Balance $357,387
This opinion shall constitute the findings of fact and conclusions of law.
Date Operator Aircraft Remarks 4/ 3/47 UAL DC-6 Engine experienced severe oil leak. Propeller failed to feather and engine oversped to 4000 RP M. Engine caught fire. Extinguished with engine fire extinguisher system. Found blower housing failure and rupture of governor cut out adapter switch gasket. 7/ 7/49 PAA-AD B-377 Oil pressure dropped on No. 1 engine. Oversped to 3000 RPM during attempted feathering and continued to windmill during emergency descent. Nose section caught fire. Nose section and propeller separated from engine. Engine continued to burn until cruising altitude was established at 3000'. 1/12/50 TWA DC-3 Loss engine oil pressure, unable to feather. Complete engine wrap and propeller shaft failure. 2/ 2/50 NWA B-377 Unable to control or feather propeller due to overspeeding. Engine nose section failure. 3/17/50 AOA B-377 Torque pressure dropped to zero. Engine oversped to 3000 RPM. Replace nose section. 4/23/50 NWA B-377 Propeller ran away in climb, unable to feather. Engine failure, cause of overspeed unknown. 6/21/50 UAL B-377 Engine oversped on climb out. Poor brush block contact pins. 8/27/50 PAA-PAD DC-4 Loss oil quantity and engine oversped, unable to feather. Engine caught fire. Nose section failure.
Date Operator Aircraft Remarks10/16/50 NWA B-377 Propeller ran away, could not be controlled or feathered. Complete engine "wrap" up. 2/ 9/51 PAA-AD B-377 Oil quantity dropped and engine oversped to 2500 RPM. Unable to feather, cause unknown. 5/ 6/51 UAL C-54 Engine oversped to 3100 RPM, unable to feather. Cause unknown. 5/23/51 PAA-LAD L-049 Engine malfunctioned. Unable to feather. Engine caught fire and fell from aircraft. Nacelle continued to burn until after emergency landing. 11/14/51 TWA L-749A Engine failure, unable to feather. Metal from engine failure contaminated governor. 11/15/51 AA CV-240 Engine oversped to 2800 RPM in cruise, unable to feather. Governor failure. 12/ 7/51 NAL DC-4 Engine oversped to 3500 RPM, unable to feather. Cause undetermined. 1/ 4/52 CAI DC-3 Engine rough, unable to feather. Inability to feather unknown. Engine impeller failure. 2/29/52 NAL DC-4 Engine oversped to 3500 RPM in cruise. Propeller controls ineffective. Propeller distributer valve malfunction. 3/ 5/52 TWA L-749A Engine oversped during cruise, unable to control propeller. Finally feathered propeller after 30 minutes of intermittent feather pump operation, cause unknown. 3/14/52 AA DC-6 Engine oversped to 3800 RPM, unable to feather. Governor internal failure. 5/10/52 CAP L-049 Engine oversped to 3000 RPM, unable to feather. Propeller governor gasket failure. 5/12/52 EAL L-1049 Engine seized in flight, unable to feather. Propeller governor contaminated with metal. 5/14/52 DAL DC-4 Engine oversped, unable to feather. Engine power section failure, cause of overspeed unknown.
Date Operator Aircraft Remarks7/19/52 TWA L-049 Engine oversped in cruise, unable to feather. Engine failure, intermediate cam drive gear failure. 8/16/52 TWA L-749A Engine oversped, unable to control or feather propeller. Oil supply adapter failure, metal in governor. 9/12/52 PAA-LAD DC-4 Unable to feather propeller after oil temperature rose. Propeller dome excessively sludged. 10/ 5/52 PAA-PAD B-377 Engine lost power in cruise. Engine oversped to 5000 RPM and could not be feathered and wind-milled at high RPM. During descent fire broke out around nose section and was not extinguished until aircraft completed emergency landing. 10/ 8/52 PAA-LAD L-049 Engine rough and unable to feather propeller due to excessive sludge in dome. 10/16/52 NWA DC-4 Engine lost oil pressure. Oversped to 3000 RPM, unable to feather. Cause of malfunction unknown. 10/17/52 TWA L-749 Engine oversped to 3000 RPM, unable to feather. Propeller distributor valve malfunction. 10/21/52 CAI DC-4 High oil consumption, unable to feather propeller. Cause of malfunction unknown. 10/30/52 CAP L-049 Nose oil pressure dropped. Propeller oversped, unable to feather. Second order balancer bushing failure. 12/11/52 BNF DC-4 Engine oversped to 2500 RPM in cruise, unable to feather. Metal contamination of governor. 2/ 2/53 PAA-PAD DC-4 Engine oversped to 3200 RPM in cruise, unable to feather. Ruptured oil cooler and propeller dome sludged. 2/ 3/53 BNF DC-6 Engine oversped to 2950 on take-off, unable to control below 2600 RPM, engine failure.
Date Operator Aircraft Remarks2/10/53 AA DC-6 Engine oversped to 4000 RPM, unable to feather. Propeller governor drive gear failure. 2/19/53 CAI DC-4 Propeller ran away. Engine seized, unable to feather. Reduction pinion gear and bearing failure. 2/20/53 HAT DC-4 Engine oversped to 3000 RPM in cruise, unable to feather. Engine failure, cause of overspeed unknown. 3/14/53 NAL L-18 Unable to control RPM in cruise, unable to feather. Nose section failure. 4/12/53 CAP C-54 Oil pressure dropped to zero, unable to feather. Crankshaft failure. Cause of failure to feather unknown. 4/14/53 Slick DC-6A Engine oversped to 3000, unable to feather. Governor loose on case. 6/ 1/53 UAL DC-6B Engine oversped to 3800 RPM, unable to feather. Engine seized. Cause of overspeed unknown. 7/ 2/53 TWA C-54 Engine oversped during climb, unable to control or feather propeller. Oil transfer sleeve failure. 7/ 4/53 NWA C-54 Engine oversped to 2800 RPM in cruise, unable to feather. Propeller governor control shaft, P/N 53345W. 9/ 6/53 NWA L-1049 No. 3 engine oversped on takeoff. Unable to control or feather propeller. No. 4 engine lost oil quantity and propeller feathered. No. 3 propeller continued to windmill. Aircraft crashed and burned during emergency landing. No. 3 propeller governor contaminated due to failure of propeller shaft oil seal adapter. 10/ 2/53 AA DC-6 Engine oversped during cruise, unable to feather. Propeller governor failure. 7/ 3/54 TWA L-749A Engine overspeed to 3000 RPM in climb, unable to feather. Propeller control oil supply adapter P/N135974N-1 failure.
Date Operator Aircraft Remarks8/13/54 UAL DC-6 Engine oversped to 3100 RPM, unable to reduce RPM or feather. Emergency landing. Cause of overspeed undetermined. 11/ 8/54 AA DC-7 Engine oversped to 3700 RPM in cruise, unable to feather. Metal contamination of propeller governor. 11/20/54 Currey C-54 Engine oversped, unable to feather. Engine nose section failure. Governor oil transfer pipe broken. 12/30/54 AA DC-7 Engine oversped to 3200 RPM during climb, unable to feather. Propeller oil transfer tube retaining cap failure. 12/31/54 Navy R7V-1 Overspeed to 3900 RPM, inability (Constellation) to feather, decoupling, propeller separated from the aircraft. 1/ 2/55 AA CV-240 Emergency landing due to oil pressure failure. Unable to feather. No. 8 cylinder off pad. Feathering line ruptured. 3/20/55 DAL CV-340 Oil leak on engine, unable to feather. No. 8 cylinder off pad. Feathering line ruptured. 3/26/55 TWA M-404 Engine rough. Unable to feather. Made emergency landing. Propeller fell off engine during landing. Error in engine assembly resulted in propeller shaft failure. 4/ 2/55 EAL L-749 Engine oversped, unable to feather. Engine experienced sudden stoppage. Engine governor shaft sheared. 4/28/55 TWA L-749 Engine failed in flight. Unable to feather propeller. Engine seized followed by fire. Propeller continued to windmill. Fire extinguished. Aircraft made emergency landing. 6/ 6/55 NWA B-377 Engine oversped to 3500 RPM in cruise. Unable to feather. Propeller windmilled until it seized. Emergency landing. Governor contaminated with metal.
Date Operator Aircraft Remarks8/16/55 PAA-LAD L-1049 Engine oversped on take off to 3400 RPM, unable to feather. Metal contamination in governor. 10/ 5/55 PAA-LAD DC-4 Engine oversped during climb, unable to feather until airspeed was reduced. Momentary contamination of governor cause of malfunctioning. 10/ 7/55 PAA-AD DC-7B Engine oversped to 4000 RPM during climb. Unable to feather until airspeed reduced to 150K. Governor drive shaft failure. 10/18/55 EAL DC-7B Overspeed and unable to control RPM. Found piece of metal holding low pressure relief valve partially open. 10/20/55 NAL DC-7B RPM went to 3250 on take off. Hinge pin in flyball head broken. 10/26/55 Air Force L-1049C Overspeed, inability to feather, propeller separated. 10/30/55 EAL DC-7B Engine oversped to 3500 RPM in cruise. Unable to feather. Engine impeller exploded during overspeed followed by intense fire. Propeller continued to windmill. Propeller governor shaft failure. 10/30/55 PAG DC-7B Engine oversped in cruise, unable to feather until airspeed was reduced. Governor drive shaft failure. 11/17/55 AA CV-240 Engine experienced oil leak, unable to feather. No. 8 cylinder off pad. Propeller feathering line "B" nut pulled loose at diaphragm. 12/25/55 PAA-AD DC-7B Engine overspeed to 3200 RPM, unable to control or feather propeller. Engine seized. Propeller windmilled independent of engine. Propeller governor drive shaft failure. 12/28/55 PAA-AD DC-7B Engine oversped to 3200 RPM. Unable to control or feather propeller. Engine caught fire and finally fell from aircraft during emergency descent. Propeller drive shaft failure.
Date Operator Aircraft Remarks1/19/56 CEA C-54 Engine overspeed to 2800 RPM in cruise, unable to feather due to defective oil transfer pipe in nose section. 2/25/56 PAA-AD B-377 Engine rough in climb. Overspeed to 3000 RPM. Engine failure due to "B" row master rod failure. Failure to feather due to damaged feathering line. 2/25/56 TWA L-749A Overspeed and unable to feather. Engine failed. Loss of propeller control probably associated with engine failure. 2/28/56 TWA L-1049 Upon breaking ground, Nos. 3 and 4 engines oversped to 3000 RPM. Feathered No. 4. No. 3 oversped to 3250 RPM. Unfeathered 4 and feathered No. 3. Probably due to seizure of drive gear shaft bushing. 3/ 1/56 BNF CV-340 Engine rough. Unable to feather due to failure of feathering line caused by #8 cylinder lifting of pad. 3/29/56 NAL DC-7 Engine loss power, unable to feather. Engine power loss due to exhaust valve failure. Lack of feathering due to loose wiring. 5/ 1/56 AAL DC-6 Overspeed to 3400 RPM on take off. Could not completely feather, cause not found. 5/ 4/56 PAA-LAD DC-4 Engine rough in cruise. Unable to feather engine. Overspeed due to crankshaft hub failure. 5/29/56 EAL L-1049C Engine turned 3300 RPM on take off roll. Metal chips in governor base and low pressure relief valve. 6/ 7/56 AAL DC-6 Overspeed to 3300 RPM during approach. Partially feathered. Two pieces of safety wire found in governor. 6/ 8/56 TWA L-1049G Overspeed to 3300 RPM on take off and unable to feather. Two idler gear teeth indented and circular impression on pressure side of gear pocket.
Date Operator Aircraft Remarks6/12/56 AAL DC-6B Overspeed to 3250 RPM during take off. Oil transfer pipe in engine found installed upside down. 6/26/56 NAL DC-7 Engine oversped to 4500 RPM. Unable to feather. Emergency landing. Engine failure and contamination of governor. Propeller blades found in reverse pitch range. 7/ 4/56 PAA-LAD DC-6B Engine overspeed 3200 RPM, unable to feather. Oil transfer housing P/N 77828 failure. 8/11/56 EAL L-1049C Overspeed on take off to 3300 RPM. Small piece of metal found under solenoid valve ball. 10/12/56 TWA L-1049 Oil temperature rose, pressure fluctuated, unable to feather. Governor contaminated. Oil transfer bearing mutilated. 10/16/56 PAA-PAD B-377 No. 1 engine oversped to 2900 RPM in cruise. Unable to feather. Engine seized. Propeller continued to windmill. No. 4 engine lost power during 3 engine flight, necessary to feather propeller. Aircraft ditched. 10/17/56 AAL DC-7B Overspeed to 3500 during climb. Believe momentary loss of high pressure oil to propeller the cause. 11/18/56 UAL DC-6B Engine overspeed to 3600 RPM. Unable to feather. Governor shaft bushing seized to shaft. 12/ 5/56 DAL DC-7 Engine overspeed to 3300 RPM. Unable to feather. Cause of overspeed undetermined. 12/12/56 A. Sud. C-46 Engine oversped 3500 RPM. Unable Amer. to feather. Aircraft ditched and sunk. 12/26/56 AAL DC-7 Aircraft returned to Los Angeles account overspeed to 3400 RPM on take off. Broken piston "O" ring seal found. 12/28/56 TWA L-1049G Overspeed to 3350 RPM during take off following propeller change. Unable to feather. Oil transfer tube in dome displaced because of mishandling.
Date Operator Aircraft Remarks12/28/56 PAA-PAD DC-7C Engine overspeed to 3200 RPM and could not be feathered. Pitch lock equipped. Found metal in governor. 1/22/57 DAL DC-7 Engine lost power in cruise. Unable to control or feather propeller. Engine seizure and failure of propeller shaft. 1/31/57 AAL DC-7 During climb, Flt. 705, out of Boston, experienced overspeed to 3300 RPM. Propeller feathered. Overspeed probably caused by contaminated oil. Wiping cloth found in power section of engine. 2/ 6/57 DAL DC-7 During climb following take off, engine overspeed to 3300 occurred. Unable to feather. Cause not determined. 2/ 7/57 LAI DC-6B Overspeed to 3300 RPM during test flight while in cruise at 14,000'. The overspeed was caused by a governor drive failure in the engine. 2/11/57 DAL DC-7 Engine overspeed to 3300 RPM shortly after take off. Partial feathering accomplished. Governor contained metal particles. Low pressure relief valve showed scoring. 2/15/57 PAA-PAD B-377 Engine oversped to 3100 RPM in cruise. Unable to feather. Propeller controlled by throttle. Oil transfer bearing sleeve failure. 3/ 5/57 AA DC-7 Engine oversped to 4500 RPM. Before feathering could be accomplished propeller and nose section separated from engine and struck fuselage. 3/ 7/57 EAL M-404 Engine overspeed to 3000 RPM in cruise. Unable to feather. Emergency landing made. Propeller governor contaminated with metal. Oil transfer pipe, P/N 58127 broken.
Date Operator Aircraft Remarks3/11/57 PAA-AD DC-7C Engine overspeed to 3200 RPM in cruise. Unable to feather. Engine seized. Metal from failed engine contaminated governor causing failure of governor drive shaft. 3/21/57 UAL DC-7 Engine overspeed to 4500 RPM. Unable to feather until aircraft slowed to 125K. Governor disengaged from engine drive. 3/22/57 LAC L1649A Aircraft #1005 experienced overspeed to 3000 RPM during take off. Unable to feather. Transfer housing gasket .0025 thin approximately 25% of diameter. 3/23/57 EAL DC-7B Unable to control propeller. Unable to feather. Dome piston seal, P/N 69737D-75, broken. 3/31/57 PAWA-PAD B-377 En route Seattle to Fairbanks, engine oversped due to failure of three governor hold down studs. Pitch lock functioned and limited overspeed to 3100 RPM. 4/ 1/57 PAA-PAD B-377 Engine overspeed to 3100 RPM in cruise. Pitch lock held at 3100 RPM. Unable to feather. Found governor pad studs broken. 4/17/57 Air France L-1049G Experienced overspeed to 3400 RPM and inability to feather. Reason for overspeed not given. 4/20/57 PAA-AD B-377 Engine overspeed to 2700 RPM in climb. Pitch lock held at 3500 RPM after reducing power. Unable to feather. Metal particles found in engine screen. 4/24/57 LAC L-1649 Engine oversped to 3200 RPM and was uncontrollable. After airspeed reduced to 110 knots, feathering slowly accomplished. During test of governor, two metal chips were dislodged following which governor was satisfactory. 4/24/57 NWA DC-6B Engine overspeed after take off. Unable to feather. Found governor hold down studs broken. 4/29/57 CAP C-54 Engine oversped, propeller not feathered.
Date Operator Aircraft Remarks5/23/57 Swissair DC-7C Engine oversped during cruise. Propeller went into reverse pitch during attempted feathering and windmilled. Unable to maintain cruising altitude. Descended to 9000. Emergency landing at Boston. Propeller governor contaminated with metal. 6/ 4/57 PAA-PAD B-377 Engine overspeed. Unable to feather. 6/ 8/57 EAL DC-7B Engine oversped in excess of 3200 RPM during cruise. Unable to feather. Overspeed followed by severe fire which damaged wing structure. 8/18/57 Vareg L-1049G Overspeed to 3500 RPM, inability to feather. #4 propeller separated and struck the #3 propeller. 9/15/57 Air France L-1049G Overspeed to 3500 RPM. Unable to feather. Flames shot 5 feet aft of the wing. Struck low pressure relief valve. 10/29/57 SAS DC-7C Overspeed to 4000 RPM. Unable to feather. Prop separated and dropped into the sea. Separation accompanied by sparks and flames. Caused by contamination, pilot valve seizure. 8/25/58 TWA L-1649A Overspeed to 3600 RPM. Prop separated and went forward, down, and to the right. Plane landed on fire. 9/19/59 Air France L-1049G Overspeed to 3000 RPM (no pitch lock). Unable to feather. Prop separated, struck fuselage, and became embedded between No. 3 nacelle and fuselage.
7/7/49 Pan American LX 78 5/23/51 Pan American LX 78 12/31/54 U. S. Navy LX 87 3/26/55 T.W.A. LX 78 10/26/55 Air Force LX 91 12/28/55 Pan American LX 78 3/5/57 American LX 78 8/18/57 Vareg LX 91 10/30/57 S.A.S. LX 91 7/25/58 T.W.A. LX 91 11/9/59 Air France RX 30
4/3/47 UAL Fire 7/7/49 PAA-AD Fire separation 8/27/50 PAA-AD Fire 5/23/51 PAA-LAD Fire separation 10/5/52 PAA-PAD Fire 9/6/53 NWA Fire 7/6/54 AA Decoupling 12/31/54 Navy Decoupling, separation 3/26/55 TWA Separation 4/28/55 TWA Decoupling, fire 10/26/55 Air Force Decoupling, separation 10/30/55 EAL Fire 12/26/55 PAA Decoupling 12/28/55 PAA-AD Fire separation
Also, a careful reading of correspondence between certain Air Line Pilots Association officials (LX 155; LX 156; RP 2925-3004) strongly suggest not only that the frequency of overspeeds and inability to feather were not suspected by the industry as a whole, but also that United acted slowly and the CAA indecisively in remedying the problem.