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RAPP v. EASTERN AIR LINES

January 20, 1967

Howard H. RAPP, Administrator of the Estate of Richard F. Zeller, Deceased
v.
EASTERN AIR LINES, INC., Lockheed Aircraft Corporation, General Motors Corporation and the United States of America. Dudley A. WARD v. EASTERN AIR LINES, INC., Lockheed Aircraft Corporation, General Motors Corporation and the United States of America. Nancy A. FRANKENFIELD, Administratrix of the Estate of George B. Frankenfield, Jr., Deceased v. EASTERN AIR LINES, INC., Lockheed Aircraft Corporation, General Motors Corporation and the United States of America. Donald A. SCOTT, Administrator of the Estate of Thomas L. Moody, Deceased v. EASTERN AIR LINES, INC., Lockheed Aircraft Corporation, General Motors Corporation and the United States of America



The opinion of the court was delivered by: WOOD

 WOOD, District Judge.

 GENERAL FINDINGS OF FACT

 On October 4, 1960, Eastern Air Lines Flight 375 crashed into the waters of Boston Harbor just outside Logan Airport in Boston, Massachusetts. The plane was on a commercial flight from Boston to Philadelphia. Fifty-nine passengers and the three crewmen were killed; 10 persons survived. The airplane was a Lockheed 188 Electra, a four-engine turbo-prop aircraft. The 501-D-13 engines had been designed and built by General Motors.

 The flight took off from runway 9 which is 7,021 feet in length. The taxi out to the runway, the take-off roll, the lift-off and the climb were all normal. The aircraft climbed naturally to about 200 feet, when a burst of flame erupted very briefly and quickly from number one engine. After the burst of flame, the aircraft continued to climb for 200-300 feet, reaching a maximum of 400-500 feet, when the number one engine came to a complete stop and the propeller on number one was seen to rotate slowly. The aircraft then made a flat left turn and returned to its original heading parallel to the runway. Thereafter, the plane made another flat left turn, the nose went up and it began to climb, after which it went into a steep left bank, with the right wing high. The crash followed. A total of 47 seconds had elapsed from the take-off to the time of the disaster.

 The plane met a flight of starlings about 6/10ths of a mile from the beginning of the runway. Estimates of the amount of dead starlings found on the runway varied from 50 to 100. Five to ten dead gulls were also found in the same general area. A sufficient amount of bird material had penetrated into the air inlet of the plane as to cause the auto-feathering device to shut off number one engine or so as to cause a flameout and the crew to shut off number one engine. At any rate, the ingestion of the birds into the air inlet caused the number one engine to shut off.

 Prior to the certification of the plane, the C.A.A. was fully aware of the frequency with which planes struck birds and flocks of birds, also of the fact that the Electra could ingest birds. Birds constituted a hazard to planes at Logan Airport. The condition of the surface of the Airport, including the presence of various types of weeds, ponds and dumping areas, was such as to attract birds. Moreover, flocks of birds from New England met at Boston during migrating periods and particularly at that time of the year.

 One of the issues in the cases is whether the Government was negligent in issuing a type certificate for the Electra or in not restricting the type certificate.

 The air inlet is an opening in that part of the aircraft enclosing the engines. Its purpose is to allow air to flow to the engines without which they cannot function. The propeller blades pass in front of the air-inlet and to some extent deflect material otherwise ingestible. The air-inlet is approximately 14" X 14". About a 14" X 14" column of air 300 feet long goes into the engines every second.

 As a result of this accident, there are approximately 48 cases pending in this Court, and more than 100 in the District of Massachusetts. Of this number, four have been tried and concluded as to liability and damages, pending possible appeal, in the United States Court for the Eastern District of Pennsylvania. Of the above, Rapp, Moody, and Frankenfield were death cases and Ward was a survivor action. The plaintiffs sued Eastern Air Lines, Lockheed, General Motors and the United States. The United States filed a cross-claim against Eastern Air Lines which has not and will not be disposed of by these findings of fact and conclusions of law. They relate only to the issue joined between the plaintiffs and the United States Government. The action against General Motors was dismissed by the Court after agreement of the parties.

 SPECIFIC FINDINGS OF FACT

 1. The Administrator of the Federal Aviation Agency, hereinafter referred to as the F.A.A., is empowered and has the duty to promote safety of flight of civil aircraft in air commerce by prescribing and enforcing minimum standards governing the design, construction and performance of aircraft and aircraft engines, in the interest of safety. In prescribing standards, rules and regulations, and in issuing certificates in the discharge of those duties, the Administrator is required to give full consideration to the duty resting upon air carriers to perform their services "with the highest possible degree of safety in the public interest." (N.T. 4226; Aviation Act, Pub.L. 85-726, § 601, 72 Stat. 775, 49 U.S.C.A. § 1421). Prior to December 30, 1958, his predecessor, the Administrator of Civil Aeronautics, had the same duties and obligations. (Former 49 U.S.C.A. § 551(b)).

 2. By virtue of these statutory provisions, it is the duty, inter alia, of the Administrator of the F.A.A., and was formerly the duty of his predecessor, the Administrator of Civil Aeronautics, to establish the safety of the design and manufacture of aircraft intended for use in the carrying of passengers for hire in civilian aviation. (Idem and N.T. 4226).

 3. Pursuant to those statutory directions, the C.A.A. issued the following regulations:

 
"(a) The engine shall not incorporate design features or details which experience has shown to be hazardous or unreliable. The suitability of all questionable design details shall be established by tests.
 
"(b) The design and construction provisions of this subpart shall be applicable to the engine when it is installed * * * and when fitted with an appropriate propeller * * *" (Title 14 C.F.R. - Civil Aviation, Subpart C, Turbine Engines, Design and Construction, § 13.200, Scope. Issued under 49 U.S.C. § 551, June 20, 1956, as appears at 14 C.F.R., Chapter 1, Page 525).
 
* * *
 
"Turbine power-plant operating characteristics shall be investigated in flight to determine that no adverse characteristics such as stall, surge or flameout, are present to a hazardous degree during normal and emergency operation of the airplane within the range of operating limitations of the airplane and engine." (Title 14 C.F.R. - Aeronautics and Space, Subpart E, Powerplant Installation, Installation, § 4b. 409, Turbine powerplant operating characteristics. Issued April 19, 1958).
 
* * *
 
"The airplane shall not incorporate design features or details which experience has shown to be hazardous or unreliable. The suitability of all questionable design details or parts shall be established by tests." (Title 14 C.F.R. - Design and Construction, Chapter 1, Subpart D, § 4b. 300, Scope).

 4. Prior to the certification of the aircraft involved in this suit, the Lockheed Electra, L-188, the Civil Aeronautics Administration, hereinafter referred to as the C.A.A., the predecessor agency of the F.A.A., had from time to time collected and compiled detailed statistics on the collision of aircraft with birds and had published a report thereof in the document which in these proceedings has been received in evidence as Plaintiffs' Exhibit 225. (N.T. 1249, 1249a).

 5. That document, Plaintiffs' Exhibit 225, established among many other things relative to bird strikes in commercial aviation, that during the period of the study prior to 1949, and as a result of analyzing 473 records of collision of birds with aircraft in scheduled commercial operations in the United States (Page 1, paragraph 1):

 
(a) There was as of 1946 more than one such collision per day, namely, 8 per week. (Page 1).
 
(b) All birds are struck most frequently during migratory seasons and at low elevations above ground. (Idem).
 
(c) During September and October, bird strikes are about ten times as frequent as in December and about twice the average annual frequency. (Page 3).
 
(d) On the basis of the data then at hand, the C.A.A. estimated that by 1950 bird strikes would increase to 12 per week. (Page 5).
 
(e) "Major bird types involved" in the reported strikes included bufflehead ducks, black ducks, wood ducks, American eider ducks, Pacific eider ducks, herring gulls, great black gulls, buzzards, Goshawks, red shouldered hawks, broad winged hawks, common doves, pigeon doves, mud hens, bald eagles, golden eagles, cackling geese, Canadian geese, greater snow geese, trumpeter swans, whistling swans, great horned owls, barred owls, pheasants, sandpipers, crows, pigeons, larks, robins, sparrows, virios, shore birds and various unidentified birds. (Pages 6, 7 and 8).
 
(f) Of all recorded collisions, 9% involved engines and propellers. (Page 12).
 
(g) There were two major bird migration routes known to the Civil Aeronautics Administration as of 1949 which proceeded generally south-westerly through New England and converged at Boston. (Page 17).
 
(h) Page 17 of that report records at Boston four collisions with gulls and two collisions with birds other than gulls. (Page 17).
 
(i) A total of 38 collisions, or eight per cent of all recorded bird strikes "involved entire flocks of birds". (Page 20).

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