The opinion of the court was delivered by: WORTENDYKE
WORTENDYKE, District Judge:
In this action Lawrence R. Wenzel, hereinafter plaintiff, suing under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), seeks damages for personal injuries and their consequences resulting from the crash of a Curtiss C-46F Cargo (Logair) Aircraft of which plaintiff was captain and pilot in the vicinity of Thun Field, Puyallup, in the State of Washington, on February 16, 1963 at approximately 6:13 P.M., Pacific Standard Time. The case was tried by the Court without a jury over a period extending from April 2 to April 29, 1968. At the conclusion of the trial the Court reserved decision and permitted counsel for the respective parties to present summations and suggested findings of fact for the Court's consideration. The Court's findings of fact and conclusions of law will appear from this Opinion.
The complaint alleged, and the plaintiff at the pretrial conference contended, that the aircraft had departed from McChord Airforce Base, Washington, weighing, with its cargo, approximately 47,751 pounds. The crew of the aircraft consisted of Wenzel, as captain and his co-pilot, Miller. The Flight thus initiated was designated as 616Z, and its destination was Malstrom Airforce Base at Great Falls, Montana, a distance of 440 nautical miles from McChord. The weather at McChord at the time of takeoff was VFR (permitting ground observation in flight), without clouds and with good visibility. The aircraft had two engines; that on the left is referred to as No. 1 and that on the right as No. 2. A separate control yoke and set of flight instruments was provided for each pilot, and the power control throttles were located upon a pedestal in the center of the cockpit between the pilot seats. On takeoff, Wenzel occupied the left seat and Miller the right seat, and Wenzel was flying the aircraft during the takeoff run and liftoff. At 0214:00 hours Greenwich Meridian Time, 6:13 P.M., Pacific Standard Time, there commenced a series of radio transmissions between the co-pilot of the aircraft and McChord Rapcon (Radar Approach Control). A transcription (Exhibit P-8 in evidence) of these communications, which were recorded as made on tape at the McChord Control, discloses that the aircraft reported, at 0214:15 to Rapcon that it was heading 120.1 and climbing towards a 9000 foot altitude. By 0215:35 Rapcon reported the aircraft 4 miles east of McChord Airport, and at 0216.49 the aircraft reported that it was leaving 3000 feet altitude. It was then directed by Rapcon, at 0217:00, to report when leaving an altitude of 6000 feet. The latter report was transmitted by the aircraft at 0217:15, and at 0218:15 Rapcon reported that the aircraft was 10 miles east-northeast of McChord. At 0219:45 Rapcon directed the aircraft, which was then 13 miles east-northeast of McChord, to turn left, heading 050. At 0219:50 the aircraft requested permission to return to McChord, and Rapcon then directed the aircraft to continue in a left turn to a heading of 260, advising that this would give the aircraft a radar vector for a precision approach to Runway 16 at McChord and recommended that it maintain a 3000 foot altitude. The aircraft reported that it was then at 4000 feet and would descend to and maintain 3000 as directed by Rapcon. At 0220:29 Rapcon inquired of the aircraft as to the nature of its difficulty and was advised by the aircraft at 0220:35 that its left engine was feathered.
At 0221:07 Rapcon advised the aircraft that it was 12 miles northeast of McChord on a bearing of 260 descending to 3000 feet, and reported conditions of weather, visibility, dewpoint and winds at McChord. Thirty-one seconds later the aircraft reported that it had "a runaway prop", and twenty-one seconds thereafter McChord reported that the aircraft was 10 miles northeast of McChord. Shortly thereafter (at 0220:05) the aircraft reported "we've got it under control", but at 0222:20 the aircraft reported that the prop was going back into flat pitch again. At 0222:38 the aircraft was informed by Rapcon that it was then 9 miles northeast of McChord.
The following transmissions are relied upon by the plaintiff in this case to support his contention that the McChord Radar Controller, concededly a Government employee, misinformed the aircraft and thereby induced the plaintiff to attempt to land the aircraft on a private airfield 15 miles from McChord and thereby caused the aircraft to crash after it had executed a misapproach to the airstrip and was making a "go round" for a new approach to the private field. Following Rapcon's advice at 0222:38 that the aircraft was 9 miles northeast of McChord under VFR conditions, Rapcon stated (at 0222:55) that the aircraft was "exactly five miles north of the runway at Thun Field". Thereupon the following succession of events occurred. The aircraft requested Rapcon to have the private airfield flash its landing lights. Rapcon undertook to telephone the request to the field but was unable to get the call through. In response to the aircraft's request for a radar vector, Rapcon directed that the aircraft "turn left heading 150 for Thun Field" and advised that the position of the aircraft was 4 miles north of Thun in a left turn to the heading given. At 0223:50 Rapcon volunteered the information to the aircraft that "the length of the runway is 5300", and at 0224:05 instructed the aircraft to turn right heading 155 when the aircraft was observed to be 3 miles north of the airport. At 0224:33 Rapcon reported that the aircraft was 1 mile north of the airport and possibly a little bit left of the runway. Moments later Rapcon advised that the elevation of the field was 520 feet. At 0225:00 the aircraft's communication to Rapcon was "High, we'll have to go around", and at 0225:07 Rapcon responded "Roger going around". At 0225:40 Rapcon reported the position of the aircraft as "one and half miles northeast of the runway at Thun Field", and at 0226:10 Rapcon advised that it had lost the aircraft on its Radar screen. The position of the wreckage of the aircraft and the precrash flight paths of the aircraft as disclosed by testimony of witnesses on the ground clearly indicate that it had successfully and safely executed its previous misapproach to the runway and was attempting to enter upon a new approach thereto from a point a mile and a half northeast of its northerly threshold and in doing so lost altitude in a sharp left turn, and struck a tree or trees, or the ground, with its left wing tip.
For what transpired in the cockpit of the aircraft between takeoff and crash we look to the testimony of the co-pilot Miller, which was taken by deposition, and to that of Wenzel who testified in person at the trial. Miller was also an employee of Zantop Air Transport, and its successor Universal Airlines, from August 9, 1962 until August 25, 1967, the date upon which his deposition was taken. On September 6, 1966 he had received his airline transport pilot's rating which qualified him to fly as captain of a C-46 aircraft. His total flight time was then approximately 5500 hours of which 2500 hours were in a C-46 aircraft. As of February 1963 he had a total flight time of 2000 hours of which between 200 and 400 hours were in a C-46 aircraft. He was co-pilot on Flight 60-16, Zantop's Logair 616Z, which crashed on February 16, 1963 near Thun Field. Miller had had previous experience with situations requiring the feathering of a propeller in a C-46 aircraft but had never experienced an overspeeding propeller commonly referred to as a "runaway prop". An effect of an overspeeding propeller is the production of excessive drag and consequently loss of altitude. In order to cope with an overspeeding propeller it is necessary to reduce the speed of the aircraft, which reduces the airflow, which keeps increasing the propeller's speed of rotation. In order to compensate for the increased drag created by the overspeeding left propeller it is necessary to apply some right rudder in order to maintain a straight course. The emergency checklist furnished by the manufacturer of the aircraft instructs that, in the case of a runaway propeller, the initial requirements are to feather the propeller and reduce the throttle to idle "cutoff". The same instructions advised that feathering is the first action to be taken if initiated prior to the approach of the RPM (revolutions per minute) to overspeed range. If such range has been reached before the propeller can be feathered, the throttles should be closed, the nose pulled up to a minimum safe speed, and the attempt to feather the propeller resumed. Landing gear and flaps should be down, the aircraft should descend to minimum altitude and should be landed as soon as practicable. The FAA (Federal Aviation Agency) Regulations require that in an emergency created by a runaway prop the pilot should land the aircraft at the first available and suitable location. (Civil Aeronautical Regulations Part 42, Sec. 42.363). Table 3 of Section 42.80-1 of Title 14 of the Code of Federal Regulations prescribes aircraft landing limitations, and sub-table 2, relating to Curtiss C-46, certificated for maximum weight of 4800 pounds, requires 3160 feet of effective length of runway for landing. Actual length of runway is the distance from the threshold at one end to the threshold at the opposite end. The effective length of a runway, however, is determined by taking the actual length and reducing it by a mathematical factor which is determined by the location and characteristics of obstacles in the glide path approach of the aircraft to the runway. The Thun Field runway extends in a northeast-southwest direction for a physical distance of 3040 feet. Its corrected length was 2667 feet. The glide angle for landing from the north upon the Thun Field runway was 4 to 1. Thun was located 6 miles east of Puyallup and 15 miles from McChord Airforce Base. It was stipulated between counsel during the trial that Airman's Guide Supplement, dated December 1, 1962, to the United States Aeronautical Information Publication issued by the Director of Airports and Seaplane Bases, was current on February 16, 1963. That publication disclosed that the longest hardtop runway at Thun was 3200 feet.
Miller testified that after a flight plan had been filed and takeoff clearance obtained at McChord, he, as co-pilot, switched the aircraft's radio to the Rapcon frequency and commenced performance of the usual duties of a co-pilot, which included handling communications between the aircraft and the Radar Approach Control at McChord. Just prior to making his transmission of 0219:50, in which he expressed desire to return to McChord, Captain Wenzel drew Miller's attention to the manifold pressure gauge for the left engine which then registered only 24 to 26 inches, when it should have been 35 to 36 inches. Miller then asked Wenzel if they were going back to McChord. Wenzel replied in the affirmative, and thereupon (0219:50) Miller made his transmission to Rapcon to that effect. At 0219:57 Rapcon directed the aircraft to continue its left turn to a heading of 260 which would be radar vector for a precision approach to runway 16 at McChord; but to Miller the left propeller then appeared to be functioning normally. When the left engine had appeared to be functioning abnormally because of the unaccountable loss of manifold pressure, the aircraft was at an altitude of between 4400 and 4600 feet. Wenzel was still flying the aircraft and when Rapcon inquired respecting the nature of the aircraft's difficulty Miller observed the Captain's right hand moving toward the feathering button for the left engine located on the control pedestal. Miller could not tell from his point of observation whether the engine did feather, but he nevertheless reported that the engine was feathered. He fixes the time when the propeller began to run away as between 0220:35 and 0221:07, when the Captain directed him to hold the aircraft while he endeavored to make the governor take control of the propeller again. Miller thereupon took over the piloting by handling the controls, applying right rudder and continuing to make transmissions to Rapcon. At 0222:05 Miller reported to Rapcon that they had the propeller under control and at that time, although the aircraft had lost some altitude, it was still above 3000 feet. At 0222:20 Miller advised Rapcon that the propeller was going back into flat pitch again, but Miller did not recall whether he or the Captain was flying the aircraft at that moment. However the Captain again took over the flight of the aircraft and made the decision to return to McChord which was the first available suitable airport at which the regulations required the aircraft to land. Accordingly the aircraft headed for McChord.
Miller recalled that the difficulty with the left engine and propeller had occurred more than twice before Captain Wenzel decided to go to Thun Field. When Rapcon advised, at 0224:05, that the aircraft was 3 miles north of that field the ground speed of the aircraft was approximately 120 knots (138 MPH). Captain Wenzel was flying the aircraft and its altitude was decreasing as it came in for a landing approach. Miller observed the beacon at Thun and so advised Rapcon. At 0224:33 Rapcon reported to the aircraft that it was a mile north of Thun, slightly to the left of the runway. The landing gear was then down; and at 0225:00 the aircraft was at the threshold of the runway at an elevation of 50 feet, in a landing attitude. Miller then advised Rapcon that the aircraft was "high" and they would have to go round.
Miller says that about the time they reached the threshold of the Thun Field runway, it was obvious that there was something wrong, i.e., that if the aircraft continued the approach, it would have gone beyond the end of the runway. Accordingly it appeared to Miller that they did not have enough runway to permit them to touch down because they would have been unable to stop the aircraft within the length of the runway. Although Miller had the Thun Field in sight, he was unable to see any of the surrounding trees or overruns during the approach.
When the aircraft was about 50 feet above the surface of Thun Field and well lined up with the center of the runway, Wenzel turned the aircraft to the left, and as Miller looked down he observed fir trees from 80 to 120 or 130 feet in height. He testified that this observation was immediately before the aircraft crashed, but he conceded that the aircraft had climbed from the point at which it was 50 feet above the surface of Thun Field to the elevation at which Miller was able to look out of the cockpit window and observe the fir trees below. From the aircraft's announcement that it was "going around" (at 0225:00) until its disappearance from the Rapcon radar screen (at 0226:10) a time interval of one minute and ten seconds elapsed, during which the aircraft had turned off from its landing approach and climbed to a point one and a half miles northeast of the runway.
A survey sketch of Thun Field and the immediate vicinity, with the reconstructed flight path of the aircraft in approaching and executing its attempted misapproach to the runway superimposed thereon; a wreckage-distribution chart showing the respective locations of scattered portions of the aircraft; photographs of the wreckage and of the neighboring terrain in various directions and at various elevations; the plotted course of the aircraft from the commencement of its initial approach to the runway until it crashed from an altitude of 200 feet at a point a mile and a half northeast of the northerly threshold of the runway, have enabled the Court to reconstruct some of the events which transpired during the relevant period. Thun Field is located in a fairly level, spottily tree-covered terrain in open country generally unoccupied by buildings in excess of two stories in height. The field itself consists of a single runway extending in a northeasterly-southwesterly direction with a 40-foot-wide bituminous paved landing strip 3040 feet in actual length and an apron, hangars and related office structures along the westerly side of the field. To the north of the threshold are two trees 60 and 62 feet in height, and to the east a low tree-covered ridge which roughly parallels the landing strip and is separated therefrom by grass-covered, generally level terrain in excess of 50 feet in width. At the southerly end of the strip the ground surface drops abruptly from the level of the southerly overrun of the runway to a depth of 100 feet below. Over this declivity an airborne plane could continue in prolongation of the line of its flight longitudinally over the landing strip and the southerly overrun for an unobstructed distance to the south. An aircraft traveling longitudinally over the center line of the paved portion of the runway at an altitude of 50 feet above its surface could continue in a straight line at the same or at a gradually increasing altitude before changing direction for the purpose of executing a go-round to make a new approach to the northerly overrun of the runway. It appears obvious, however, from the evidence that the aircraft involved in this case, upon reaching a point midway of the length of the paved runway of the air strip, and while still maintaining an altitude of 50 feet or less above the same, executed a left turn of approximately 90 degrees into a northeasterly direction, climbed to an altitude of 200 feet, and while attempting to make another left turn through a similar arc, struck a tree or trees with its left wing and crashed in an open level area a mile and a half to the northeast of the northerly threshold of the airstrip.
Plaintiff argues that a precedent for recovery of damages here is to be found in Ingham v. Eastern Air Lines, Inc., 373 F.2d 227 (2 Cir. 1967) cert. den. United States v. Ingham, 389 U.S. 931, 88 S. Ct. 295, 19 L. Ed. 2d 292. However, I find the two cases distinguishable factually. In Ingham Eastern's passenger airliner crashed at Kennedy International Airport while attempting to land on a runway which was engulfed in swirling ground fog. The liability asserted against Eastern by the plaintiff passenger was predicated upon the pilot's alleged failure to exercise due care in operating the aircraft and that this negligence was one of the causes of the collision. The Government was joined as a defendant under the Federal Tort Claims Act "on the claim that poor visibility was a factor in the crash and that a substantial contributing and concurrent cause of the accident was the negligence of the Air Traffic Controllers and the United States Weather Bureau Observer in failing to provide adequate and up-to-date weather information." Eastern's negligence was found to consist in its execution of a "misapproach maneuver" in a negligent manner. The Government's liability was predicated upon the Controller's failure to report the change in visibility in the landing area from one mile to three quarters of a mile which was at variance with the provisions of § 265.2 of the Air Traffic Control Procedures Manual of the FAA. In Ingham the Government argued that the failure of its Controller to comply with § 265.2 of the Manual was not the proximate cause of the accident. With this contention the Court of Appeals disagreed and held that in the circumstances of the case the failure of the Controller to inform the aircraft that visibility had dropped to three quarters of a mile, only slightly above the aircraft's minimum, was a proximate and concurrent cause of the accident. Moreover, in Ingham it was pointed out that if the crew of the aircraft had been notified of the changing weather conditions, the pilot might have decided to divert to another airport rather than to attempt an ILS landing at the airport in question, or the crew might have maneuvered the plane differently and ...