function of providing weather information to pilots in flight. The Cessna received all pertinent, available weather information, current and forecast, from the Akron Flight Service Station.
43. Such activities by Flight Service Stations served the additional purpose of freeing approach controllers to devote the maximum time possible to their primary duty, i.e., the employment of radar and navigational guidance to sequence aircraft flying in accordance with IFR rules in such a manner as to prevent midair collisions. Paragraph 120 of Plaintiff's Exhibit 19 defines "approach control service" as a service provided for IFR flights. It is notable that the facility was located at GPA in a room called the Instrument Flight Room, where the personnel had no visual reference to aircraft under their jurisdiction.
44. While an approach controller might take time from his normal duties to ascertain from other government employees weather information additional to that furnished him by pilots or by the United States Weather Bureau, there is no evidence that he is required to do so unless such additional information is actually requested by a pilot under his jurisdiction. The Cessna made no such request.
45. In accordance with regular procedure, the approach controller had only the actual prevailing local weather information for GPA, as furnished hourly by the Weather Bureau over its Tel-Autograph. That consisted of the hourly sequence and included the ceiling, visibility, temperature, dew point, wind velocity and wind direction. It did not include weather forecasts. He possessed no knowledge relating to the height of the overcast, any prevailing icing condition, or turbulence. Nor did he have knowledge of the contents of the flash advisory forecast given the Cessna by the Akron Flight Service Station.
46. The hourly sequence for 0758Z (2:58 A.M., E.S.T.) which was given to the approach controller on the Tel-Autograph contained the same "current" Pittsburgh weather as was given to the Cessna by the Akron station. That sequence listed no pilot reports and, hence, no information concerning the top of the overcast or icing conditions actually encountered.
47. There was no F.A.A.-promulgated duty placed upon the controller to transmit weather information except at the time of granting an approach clearance, at which time the altimeter setting and the velocity and directions of the wind had to be given; and also when ceiling for visibility was at or below highest circling minimums.
48. No approach clearance had been given the Cessna, nor was the ceiling and visibility at or lower than the highest circling minimums.
49. A pilot flying VFR "on top" can see any cloud layers beneath him, as well as the horizon they form. If he is informed of the altitude level of the "ceiling", he is in a better position than the approach controller to determine the depth of the overcast.
50. When flying on top of an overcast, moonlight and stars provide visual references. On the night in question the moon rose at 11:43 P.M. on January 7, 1961 and set at 11:21 A.M. on January 8, 1961. At the time of the accident, the moon phase was one day preceding the last quarter, and was at a point approximately 40 degrees above the horizon.
51. There was no F.A.A.-promulgated duty placed upon the approach controller to order the Cessna to another airport under the circumstances of this case.
52. The Flight Information Manual, plaintiff's Ex. 21, advised non-instrument-rated pilots (p. 86) to choose an alternative course of action (if available), rather than request radar approach or let down in IFR conditions. It was the pilot's responsibility as a part of his preflight action to determine the availability of an alternate course of action. See: 14 C.F.R. § 60.11, footnote 8 supra, and compare 14 C.F.R. § 60.41.
If an alternative course was not previously determined or available, the Cessna pilot should then have advised Approach Control that he was not instrument-rated and declared an emergency.
53. If the pilot had declared an emergency, the controller could have ascertained the nature of the emergency and then, as the situation warranted, have adopted one of two courses: (1) he could have given the Cessna priority treatment and the simplest clearances to attempt to effect a landing at GPA; or (2) after determining from information supplied by the pilot and other F.A.A. facilities that a suitable alternate airport was in fact available, directing the Cessna to it.
54. The Flight Information Manual (pp. 47-48) recommended that a pilot fly a triangular pattern if he encountered an emergency and had radio failure.
55. The Cessna did not fly any such triangular pattern.
56. The rules for the pertinent type of radar assistance are set out in sections 1.2(5) and 4, respectively, of plaintiff's Ex. 20. In addition, normal standards of maintaining separation to prevent inflight collision as set forth in plaintiff's Ex. 19 were used in rendering radar assistance.
57. The Standard Radar Manual (section 4.1) provides that the pilot is responsible for determining whether the approach or landing is authorized under existing weather minimums.
58. By its terms, section 100.7 of plaintiff's Ex. 19, requiring a controller to use his best judgment in giving clearances, was applicable only if no other rules existed. Other rules did exist, as above mentioned.
59. Approach Control's surveillance radar could not reflect the altitudes of the Cessna during its descent.
60. The words "I would like radar assistance in let down" meant to the controller that the Cessna pilot wanted certain compass headings so that he could "let down" or descend to an altitude appropriate for the commencing of an approach.
61. This is done, where no emergency is known to exist, solely by supplying the pilot with headings for directional guidance and traffic separation, while "tracking" his flight by means of the surveillance radar scope.
62. The approach controller inquired if the pilot wanted an IFR approach in order to clarify the type of radar assistance desired and the type of flying entailed thereby.
63. When an aircraft is above a solid overcast, the only way it can land at an airport underneath that overcast is by flying through it, in accordance with Instrument Flight Rules.
64. By affirmatively acknowledging that he wished an IFR approach, the pilot was requesting a clearance to make an instrument flight through the overcast in IFR weather conditions in order to land at GPA.
65. The pilot knew he was VFR on top and would have to fly through the overcast to make a landing.
66. When the Cessna reached a position 1,000 feet above the clouds on his descent, the nature of the flight was changed from one under VFR conditions to one under IFR conditions in accordance with the definition of IFR conditions contained in 14 C.F.R. § 60.30
and 14 C.F.R. § 60.60,
and thereafter Kullberg, although not instrument rated, recklessly flew into IFR conditions,
and eventually met disaster in the solid overcast.
67. The Flight Information Manual, p. 86, further advised pilots that although the controller could use radar to provide separation from other traffic and navigational guidance to an airport, "the job of flying the aircraft safely still rests with the pilot".
68. There is no evidence that the pilot rejected or questioned any clearance, or requested an amended clearance.
69. Only the pilot was in a position to determine proximity to the tops of clouds so as to determine at what altitude IFR conditions would commence upon his descent. The Flight Information Manual advised that "the pilot must keep the controller advised of the weather conditions in which the aircraft is operating and along its course ahead" (p. 86).
70. The pilot neither advised the controller of weather conditions nor did he advise him of his altitudes after leaving 11,000 feet.
71. The Flight Information Manual further advised that "authorization to proceed in accordance with such radar navigational assistance does not constitute authorization to the pilot to violate the Civil Air Regulations" (p. 86), thereby placing the pilot on notice that traffic control service to aircraft did not relieve him of responsibility for safe operation of the aircraft.
72. The aircraft sustained damage and in-flight breakup prior to impact due to heavy positive loads on the aircraft. Loads or loading refers to aerodynamic forces of air encountered by the aircraft while in flight.
73. Most probably, the pilot became disoriented upon entering the overcast, losing his visual references and control of the aircraft.
74. It is most probable that the aircraft broke up in flight due to heavy positive loading encountered during a high-speed spiral occasioned by the pilot's loss of control.
75. The Cessna was not equipped for flight in icing conditions.
76. There is no evidence of a breach of any duty owed by the approach controller to the occupants of the Cessna.
77. There is no evidence that Michael J. Ego, manning the Pittsburgh Flight Service Station during the early morning hours of January 8, 1961, breached any duty of care owed by him to the occupants of the Cessna.
78. There was no act or omission to act on the part of defendant's employees which could be deemed to be negligent under the circumstances of this case.
79. In any event, there was no causal connection between any alleged act or omission to act on the part of any of defendant's employees and the crash of the Cessna, whether the Cessna's in-flight breakup was due to pilot disorientation (as we find) or to a disabling accumulation of ice; Kullberg possessed all available information pertaining to flying conditions and better than any other person knew whether he and the aircraft were equipped to fly in same.
80. The following negligent acts or omissions to act, committed by Kullberg in the operation of N5138E, cumulatively constituted the sole proximate cause of the harm sustained by him:
(a) Taking off from Chicago, or permitting such takeoff, when he as pilot in command was not instrument rated and knew or should have known that the Cessna would have to fly through a deep overcast in order to land at Greater Pittsburgh Airport;
(b) Permitting the continuation of such flight after receiving the current Pittsburgh weather and flash advisory from the Akron Flight Service Station while en route;