plane have to crash into the sea to bring the death within the Act any more than a ship should have to sink as a pre-requisite.'
The liability of the United States and its consent to be sued is fixed by Section 2674 of the Federal Tort Claims Act (28 U.S.C.) which provides:
'The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. * * *'
Jurisdiction of the district court is prescribed by Section 1346(b) of the same Act, which reads, in pertinent part:
'* * * the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for * * * personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government * * *, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'
Venue is fixed by Section 1402(b) of the same Act which says:
'Any civil action on a tort claim against the United States under subsection (b) of section 1346 of this title may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.'
By Section 2680 of the Act there are excepted from recovery under the Act claims or suits in admiralty against the United States covered by Death on the High Seas Act, as follows:
'The provisions of this chapter and section 1346(b) of this title shall not apply to --
'(d) Any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States. (Note: Death on the High Seas Act is 46 U.S.C. §§ 761-68.)
'(k) Any claim arising in a foreign country.'
The right of action and where, and by whom, it may be brought is covered by Section 761 of Title 46 U.S.C.A. (Death on the High Seas Act) which says:
'Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, * * * the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.'
In such case the amount and apportionment of any recovery is covered by Section 762 of the same Act which provides:
'The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss they may severally have suffered by reason of the death * * *.'
By Section 2678 of Title 28 U.S.C., the Court may allow attorney's fees not to exceed 20%.
The application of the doctrine of res ipsa loquitur does not preclude libellant's proof of specific negligent acts and omissions. It is now well settled that in pursuing alternate theories of liability the libellants do not prejudice their reliance upon the doctrine of res ipsa loquitur. Weigand v. Pennsylvania Railroad Co., 3 Cir., 1959, 267 F.2d 281; Citrola v. Eastern Airlines, Inc., 2 Cir., 1951, 264 F.2d 815, 818; Northwest Airlines v. Rowe, 8 Cir., 1955, 226 F.2d 365, 370; Haasman v. Pacific Air Express, D.C.Alaska 1951, 100 F.Supp. 1, 2, affirmed sub nom Des Marais v. Beckman, 9 Cir., 1952, 198 F.2d 550, certiorari denied 1953, 334 U.S. 922, 73 S. Ct. 388, 97 L. Ed. 710; Prosser Torts, 214 (2d ed. 1955), 33 A.L.R.2d 791.
Plane 6579 was restricted to the carriage of freight only and should not have been used to carry the libellant's decedent in an extended flight over water.
Major Williams was one of the survivors. He was a former member of the squadron. He organized and supervised the bail-out (Morris 12, 21). He passed over early rescue in favor of some of the other survivors without a life raft (Williams 60). He was in the Marine Corps Reserve (Williams 99-100) at the time he gave his deposition. Major Williams stated without reservation that 6579 was restricted to carrying freight only (williams 8). He was the officer who took over the controls at Itami on the first leg of the flight and would have reason to be more keenly aware of the aircraft's status than the others. He showed his awareness of that status when Captain Bernasco sought to hitch a ride to Itami (Williams 26). He made it clear that carrying Captain Bernasco as a 'special crew member' was a subterfuge (Williams 114). Regardless and making no finding as to the military, we conclude that it was improper for Eastridge, a civilian, to have been aboard as a passenger under the circumstances. (Williams 123).
Major Maxwell also was aboard the plane as a member of its crew, yet the Government did not produce him as a witness and did not take his deposition for use at the trial. The reason given was that the Government learned that he was ill. However, before the trial started, the Government did not ask for the postponement of the trial or for its adjournment until he was available. Under such circumstances, it must be concluded that his testimony would have been favorable to the libellant and adverse to respondent. Vigderman v. United States, supra.
No act of God is present in this case to account for the sudden malfunction of the left propeller and the detaching and dropping of the left motor into the sea. The Government has failed to explain satisfactorily the nature of the failure or its cause. The malfunction is one which does not normally occur in an aircraft without negligence. Moreover, in this case, the libellant had no opportunity to obtain specific information pertaining to the engine and propeller despite repeated attempts to elicit such information. The Government steadfastly maintained such information kept in operational and maintenance records, including engine and propeller logs, was not available because these records had been destroyed. This, despite the fact that the instant suit was brought within the statutory limitation period and an investigation had been made by the commanding officer of the squadron the following day (A. to I. 12). It is customary to incorporate pertinent logs in such investigations (Nault 338-339; Morse 344-345).
It was not until the libellant had completed the direct examination of the expert witness that the Government amended its answer to interrogatory 84 to include the data in a report of the Hamilton Standard Propeller Company relating to the service time of the engines and propellers of 6579 (148, 325).
In the light of the service time of the left propeller, the respondent seeks to shift the blame of the malfunction to the manufacturer. The disclosure is made for the first time five and one-half years after the occurrence; the libellant has been deprived of any discovery indicated by such disclosure; the libellant has been prevented from joining the manufacturer as a party-respondent; the use of such evidence to libellant's prejudice violates the letter and spirit of the rules of discovery. See O'Connor v. United States, 2 Cir., 1958, 251 F.2d 939.
We now come to the question of damages. The established rule is that the widow's rights are fixed as of the moment of death, and her subsequent remarriage is not to be considered in assessing damages. Johns v. Baltimore & Ohio Railroad Company, D.C.W.D.Pa.1956, 143 F.Supp. 15, 28, affirmed per curiam 3 Cir., 239 F.2d 385; Vigderman v. United States, D.C.E.D.Pa.1959, 175 F.Supp. 802; United States v. The S.S. Washington, D.C.E.D.Va.1959, 172 F.Supp. 905, 908, affirmed sub nomine United States v. Texas Co., 4 Cir., 272 F.2d 711; The City of Rome D.C.S.D.N.Y.1930, 48 F.2d 333. She is entitled to receive under the Death on the High Seas Act, 46 U.S.C.A. §§ 761, 762, a fair and jus t compensation for the pecuniary loss she has suffered by reason of the death of the libellant's decedent. This includes not only loss of contributions but also the loss of inheritance. National Airlines, Inc. v. Stiles, 5 Cir., 1959, 268 F.2d 400, 403-404, certiorari denied 361 U.S. 885, 80 S. Ct. 157, 4 L. Ed. 2d 121. We fix such compensation at $ 75,000 (less reimbursement to libellant Globe Indemnity Company for compensation paid to the widow as shown in finding of fact No. 26).
We have examined the Government's arguments and the authorities cited in support thereof and we find that they lack validity. Thus this was a tort arising on the high seas more than a nautical league from shore and not within the territorial limits of a foreign country; and the Government was not a mere volunteer in the search and rescue operations and its negligence in connection therewith rendered it liable. United States v. Gavagan et al., 5 Cir., 1960, 280 F.2d 319. This is not a case where negligence results from a mere failure to rescue. On the contrary, it is one where the inaction and the mistaken action of the Government worsened libellant's decedent's position. Compare P. Dougherty Co. v. United States, 3 Cir., 1953, 207 F.2d 626, certiorari denied 347 U.S. 912, 74 S. Ct. 476, 98 L. Ed. 1068; Rayonier, Inc. v. United States, 1957, 352 U.S. 315, 77 S. Ct. 374, 1 L. Ed. 2d 354; Frank v. United States, 3 Cir., 1957, 250 F.2d 178, certiorari denied 356 U.S. 962, 78 S. Ct. 1000, 2 L. Ed. 2d 1069.
All requests for findings of fact and conclusions of law which are inconsistent with the foregoing are denied.
Libellant's counsel may submit an appropriate decree.