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Blumenthal v. United States

June 12, 1962


Author: Staley

Before KALODNER, STALEY and SMITH, Circuit Judges.

STALEY, Circuit Judge: Donald W. Eastridge, an employee of the Philco Corporation, was assigned as a technical representative of the Air Force in the Far East under a contract between Philco and the United States. In pursuance of his duties, Eastridge boarded a Marine Corps airplane in Korea for travel to Japan. While over the Sea of Japan, engine trouble necessitated a bailout by all passengers, including Eastridge, who was drowned. Immediately before the bail-out order was given, the pilot radioed the Air Traffic Control Center at Taegu, Korea, stating what had happened and giving his position. That information, however, was incorrectly transmitted by personnel at Taegu to the Rescue Control Center of Fifth Air Force, thereby impeding rescue operations.

Libellant, administrator of Eastridge's estate, commenced this action in admiralty under the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq ., for damages, alleging that Eastridge's death was caused by the negligence of the respondent United States. The district court found respondent negligent and entered judgment for libellant.*fn1

Respondent does not take the position that this action was improperly brought in admiralty, nor that it has not waived its immunity under the Death on the High Seas Act when the negligent act or omission occurs on the high seas.It points out that § 1346(b) of the Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. § 1346 (b), requires that the respondent's liability be determined in accordance "with the law of the place where the act or omission giving rise to the liability occurred."*fn2 Even though this is an admiralty action, the respondent contends that the recent Supreme Court decision in Richards v. United States, 369 U.S. 1 (1962), requires that its liability be determined in accordance with the law of the place where the negligent acts occurred without regard to the law prevailing at the place where the injury was inflicted. It says that the district court here found that the place of the negligent acts was either Japan, where the plane was based and where the alleged failure to inspect and properly maintain the aircraft occurred, or Korea where the neglect was that of Air Control in transmitting inaccurate information to Rescue Control concerning the type of aircraft involved and the point where it went down, and to a lesser extent on the part of the latter in not checking back after the first attempt at rescue failed. That being so, it says libellant's claim is barred by § 2680(k) of the FTCA, which excepts "any claim arising in a foreign country" from the waiver of sovereign immunity.

We think that respondent's construction of the district court's findings is too narrow, relying as it does on specific words rather than giving full play and effect to all of the findings and conclusions of law. The district court, under our interpretation, found respondent negligent in operating an aircraft which was uninspected and improperly maintained, and in using it to transport personnel although restricted to cargo. It is, therefore, unnecessary to pass on the question of whether the Richards decision, which involved a multistate land tort, applies to a suit in admiralty, for, even assuming for the purpose of our decision that it does apply, it is clear to us that the district court's findings require an affirmance.

This court had occasion in Zimmerman v. Montour R.R. Co ., 296 F.2d 97 (C.A. 3, 1961), cert. denied, 369 U.S. 828 (1962), to articulate what our approach is in construing a district court's findings of fact, and said that those findings "should be construed liberally and found to be in consonance with the judgment, so long as that judgment is supported by the evidence in the record." 296 F.2d at 98. That was a restatement of what others have held on the same question. E.g., Triangle Conduit & Cable Co. v. Federal Trade Commission, 168 F.2d 175 (C.A. 7, 1948), affirmed sub nom. Clayton Mark & Co. v. Federal Trade Commission, 336 U.S. 956 (1949).

Here, the district court found that the accident which gave rise to this suit occurred on the return leg of a regularly scheduled flight between Japan and Korea. The aircraft took off from Korea at 1225 local time. At 1434, while cruising at a normal power speed, all instruments showing normal, a sudden violent vibration commenced in the plane. The left propeller was feathered, and shortly thereafter the left engine and propeller fell off the plane. The pilot in the meantime turned the plane back towards Korea. The court found that proper inspection, installation and maintenance of the aircraft would have prevented the malfunction, and that it was the accident that gave rise to the action. Of course, those failures could not form the basis for an action in negligence unless the aircraft had been operated. Thus, it is clear that the district court found that the subsequent operation of the aircraft on which the left engine and propeller were improperly installed, maintained, or inspected constituted culpable negligence. Indeed, the evidence convincingly established that the defendant should have known of these derelictions, and that operating the aircraft under such circumstances would probably result in disaster.

The district court also found respondent negligent in transporting civilian passengers on the aircraft. One of the crewmen testified that the aircraft was restricted to "freight only." In order to avoid the effect of this restriction, an Air Force officer who was taken aboard the aircraft was listed as a special crewman, when in fact he was only a passenger. There was testimony in the record that the aircraft had inadequate survival equipment aboard, and was so constructed that it could not be successfully ditched.*fn3

The record discloses that our interpretation of the district court's finding that negligence occurred in operation of the plane coincided with what the respondent understood the issues to be. After the district court filed its findings of fact and conclusions of law, respondent submitted a brief to that court in which it said:

"The allegations of negligence which have been advanced by libellants are:

"(2) Violation of an alleged 'freight only' restriction.

"(8) The R4Q-1 is allegedly an unsafe plane for carrying passengers over water."

In its proposed findings of fact and conclusions of law, respondent stated that libellant claimed negligence in five instances, including violation of the alleged "freight only" restriction and use of an allegedly unsafe plane for transporting passengers over water.

There is overwhelming evidence in the record to support the findings of the district court, and respondent, of ...

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