Before KALODNER, GANEY and SMITH, Circuit Judges.
KALODNER, Circuit Judge: These cross-appeals arise out of an airplane disaster at about 5:29 A.M. on June 20, 1956. The libellants' decedent, Marshal Noel, was a passenger on the ill-fated aircraft, a Lockheed Constellation, call numbers YV-C-AMS ("AMS"), owned and operated by Venezuelan Airlines, Linea Aeropostal Venezuela ("LAV"). The flight originated from Idlewild Airport, New York, at 3:18 A.M., having as its destination Marquetia, Venezuela. At about 4:30 A.M. engine trouble developed and the pilot notified Idlewild that he was returning. At about 5:29 A.M., after beginning to dump fuel in preparation for its landing, the airplane burst into flame and crashed into the ocean approximately 30 miles off the coast of Asbury Park, New Jersey.*fn1 Libellants brought this action against United Aircraft Corporation ("United"), the manufacturer of the airplane's propeller system, alleging the accident was caused by complications (discussed below) in AMS's :2 propeller,*fn2 and that United was negligent in failing in its duty (1) to perfect a safer propeller system, and (2) to warn LAV of certain weaknesses in AMS's propeller system which resulted in its destruction. The accident occurred outside the territorial waters and hence this action was brought pursuant to the Death on the High Seas Act, 46 U.S.C. § 761 et seq., properly alleging admiralty jurisdiction. See Weinstein v. Eastern Airlines, Inc ., 316 F.2d 758 (3d Cir. 1963).
The case was tried to the District Court without a jury. It found in libellants' favor in the amount of $387,387.00. 219 F. Supp. 556 (D. Del. 1963).
Respondent, United, appeals (at No. 14730) urging that (1) libellants failed to show a causal relationship between the airplane's destruction and failure in its propeller system, and (2) it owed no "continuing duty" to improve the propeller system once the propellers had been sold to LAV, and had been approved by the C.A.A.
Libellants' cross appeal (at No. 14727) contends that the trial court erred in failing to apply proper legal standards in fixing damages and in making "clearly erroneous" fact-findings bearing thereon.
I. Respondent's Appeal at No. 14730
The record shows that AMS's :2 engine had begun to overspeed approximately 50 minutes prior to the fatal crash, and that the pilot was unable to feather the propeller. Overspeed is a condition in which the propeller rotates at a rate greater than its maximum capacity. Feathering refers to the operation whereby the blades of the propeller are turned on their own axis so that they parallel the airstream in order to limit rotation once the propeller has been turned off. If overspeed is not brought under control either by feathering or some other way it is considered highly dangerous because of the strong likelihood of disintegration of the engine and its component parts, decoupling, i.e., separation of the propeller shaft from the engine shaft, separation of the propeller from the aircraft and fire.
The District Court made these fact-findings: - Engine overspeed developed at about 4:24 A.M.; after signaling Idlewild that the overspeeding propeller could not be feathered, the plane proceeded to return thereto at gradually reduced speed and altitude; at 4:46 A.M. it signaled an emergency due to overspeed, and asked for assistance; a Coast Guard plane with crew of four, under the command of Commander Hancox, was dispatched to intercept AMS and accompany it on its return flight; at about the same time an Eastern Airlines plane under the command of Captain Fisher changed course in order to attempt interception; the Coast Guard plane spotted AMS and took up escort position to the left and slightly astern about 100 feet, while the Eastern Airlines plane was approaching; at 5:29 A.M. AMS reported that New York was in sight, and proceeded to dump fuel; immediately thereafter, according to the deposition of Captain Fisher, a "white puff" appeared followed by a steady trail of mist bubbling or rolling from beneath AMS and extending aft; the plane then became a ball of orange flame; it veered sharply to the right, went into a shallow dive, appeared to gain altitude, and then crashed into the ocean; several small objects were seen to fall free and a piece, which may have been part of the wing, was observed on radar to have split from the main body; a double airplane seat cut completely through by some sharp descending object, and the bodies, right legs severed, of a Mrs. DeArmis and her son, who had been assigned to the :4 seat immediately behind the :2 propeller, were found in the ocean some distance from the scene of the accident; there were no survivors.
The libellants' theory as to the plane crash was presented by its expert, Eugene L. Grindle, as follows: - the propeller decoupled as a result of the unchecked overspeed; the pilot, relieved by an accompanying decrease in engine screech, decided to dump fuel; at that moment some movement of the plane caused the :2 propeller to separate; the propeller moved inboard, slashed through the fuselage and knocked the plane out of control; when the propeller separated it left hot nose section particles exposed, which flamed into fire and ignited the fuel as it was being dumped; the loss of the propeller forced the plane to veer to the right; it also caused the ejection of at least one seat.
The respondent's theory was that the accident was caused by a fire and explosion in the right wing. It must immediately be noted that the trial judge rejected this theory as "sheer speculation." 219 F. Supp. 563-566.
An "Accident Report" of Frank Gates, Jr., a Lockheed investigator, placed in evidence by the respondent, stated in part:
". . . one seat, the only one recovered, had been cut from top to bottom by a downward, angular, smashing blow that went right through the seat left hand arm rest, seat cushion, and lower frame. Paint marks and spacing of the marks on seat structure were visibly similar to the paint banding which is on propellers adjacent to the tip. The cut was from the left hand side, and at the same angle at which the :2 propeller would hit if it tipped back around the cowling, as it would if it came off while windmilling, and happened to go to the right and into the fuselage. It would hit at about the left hand third-seat-back position, right over the :5 fuel tank. . . . we checked and found that the :5 tank was supposed to have minimum fuel in it at the time of the fire, only about 50 gallons, so we don't quite know whether or not the propeller could have released enough fuel by chopping down into it to cause the general fire."
The first issue raised by respondent's appeal is that of causation.The trial court found that the "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." 219 F. Supp. 566.
Respondent contends that the evidence does not support the court's findings as to causation and further urges that (1) Grindle was not qualified to testify as an expert; and (2) it was error to credit Captain Fisher's version of events immediately preceding the crash of AMS in view of the testimony of Commander Hancox and the two members of his crew who said they saw an undulating blue flame on the starboard or right side of AMS which appeared above and below the fuselage and continued for about seven seconds.
As to Grindle's qualification as an expert, it is settled that in the absence of a clear abuse of discretion the trial judge's determination of competency will not be set aside. Roberts v. United States, 316 F.2d 489 (3d Cir. 1963); Hickey v. United States, 208 F.2d 269 (3d Cir. 1953), cert. den. 347 U.S. 919, 98 L. Ed. 1074, 74 S. Ct. 519 (1954); Trowbridge v. Abrasive Co. of Philadelphia, 190 F.2d 825 (3d Cir. 1951).
The record shows that Grindle had been assistant chief flight engineer with Pan American Airways for 11 years, and that he had investigated about 30 cases of overspeed. He was also familiar with hundreds of other cases through Air Force reports and similar sources.While at Pan American part of his work was to initiate corrective action and procedures necessary to cope with overspeeds. He also participated in the investigation of between 30 and 40 ...