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WILSON v. BOEING CO.

February 18, 1987

LORA L. WILSON, et al.
v.
THE BOEING COMPANY, et al.



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 In this action, the plaintiffs seek to recover damages on account of the death of RMC Larry Joe Wilson which occurred after an unsuccessful single engine landing of a United States Navy CH-46D helicopter on the high seas near the island of Diego Garcia in the Indian Ocean. The jurisdiction of this Court is based on diversity of citizenship, 28 U.S.C. § 1332, and on the Death on the High Seas Act, 46 U.S.C. §§ 761-767. Federal law applies.

 Plaintiffs filed this suit against The Boeing Company, Boeing-Vertol Company ("Boeing defendants") and General Electric Company ("General Electric") seeking recovery on theories of negligence, strict liability and breach of warranty. The plaintiffs entered into a settlement agreement with the Boeing defendants, and a Local Rule 23(b) Order was entered dismissing plaintiffs' claims against the Boeing defendants with prejudice on October 10, 1985. Plaintiffs have continued to pursue their claims against General Electric, the manufacturer of the T58-GE-10 engine with which the CH-46D helicopter was equipped.

 Plaintiffs base their claim against General Electric on the alleged defective design of the lubrication system of the T58-GE-10 engines supplied to the government. They have identified the defective design as the absence of any warning device, mechanism or indicator which would enable the flight crew to determine that the engine's oil filter was about to or had become clogged to the point where oil flow would bypass the filter and enter the system through a bypass valve in an unfiltered condition containing potential contaminants which could result in the loss of oil system function. Plaintiffs further contend that General Electric was in some way responsible for the United States Navy's failure to set forth procedures in the Naval Air Training and Operating Procedures Standardization Program ("NATOPS") manual to enable flight personnel to respond to a high oil pressure gauge reading.

 I.

 The crash of the subject helicopter occurred on February 28, 1983 during a flight from Diego Garcia to the U.S.S. Dale via the U.S.S. Santa Barbara on a routine "pax/mail/cargo mission." After landing on the deck of the U.S.S. Santa Barbara to discharge mail and passengers, and after the helicopter had refueled, it departed for the U.S.S. Dale. A short time after departure from the U.S.S. Santa Barbara, an increase in the oil pressure of the No. 2 engine was noted with the pressure climbing above the normal operating limits of 27 to 67 PSI to 70 to 76 PSI and continuing to rise to the limits of the gauge. After examining the engine and consulting the NATOPS manual in an effort to devise a solution, finding no emergency procedures in the NATOPS manual applicable to the situation, and moving the No. 2 engine condition control lever from "FLY" to "START" with no resulting decrease in oil pressure, the flight crew secured (shut down) the No. 2 engine. The aircraft changed course in order to return to the U.S.S. Santa Barbara for an emergency landing. The crew planned to land the aircraft on the flight deck of the U.S.S. Santa Barbara which should have been feasible with only one engine; however, either due to a power failure in the remaining engine or because of other prevailing conditions, and in order to avoid the possibility of a crash on or adjacent to the flight deck, an emergency landing was made in the sea immediately astern of the deck of the U.S.S. Santa Barbara.

 Upon exiting the helicopter, the crew and passengers grouped together and determined that RMC Wilson was missing. Although a search was undertaken, the body of RMC Wilson was not recovered. Furthermore, because the crash resulted in the sinking of the helicopter in approximately 550 meters of water, no first-hand analysis of any mechanical malfunctions was possible, and therefore, the United States Navy has never reached any conclusive determination of the precise cause of the mishap.

 General Electric has submitted the affidavits of William M. Meyer, the current manager of General Electric's T58/T64 program who has been involved in the T58 or T58/T64 programs in various capacities since 1959, and Ferdinand Mikel who was a civilian employee of the United States Department of the Navy from 1954 to 1980 and a manager of the Standards and Specifications Unit of the Propulsion Division of the Bureau of Aeronautics (a/k/a Bureau of Weapons or NAVAIR, hereinafter, "Bureau of Aeronautics") from approximately 1960 to 1975. These affidavits establish that the CH-46D helicopter, Bureau No. 152508, involved in the subject accident was equipped with two T58-GE-10 engines, serial numbers 281760 and 281132.

 Engine 281760 was supplied to the government pursuant to Contract No. AF33(657)-16830, effective June 30, 1966, which required General Electric to provide one hundred ninety-three (193) T58-GE-10 turboshaft engines for installation on SH-3D and CH-46D helicopters and for use as spare engines.

 The contracts pursuant to which the engines were supplied to the government by General Electric required that the T58-GE-10 engines for use in the CH-46D helicopters be manufactured in accordance with specification E-1081, dated June 14, 1963, including approved engineering change proposals and approved engineering changes as of the effective date of the respective contracts. Specification E-1081 is a detail specification which incorporates, where applicable, military specification MIL-E-8593, the general military specification for engines, aircraft, turboprop, dated September 3, 1954.

 The affidavits reflect that the T58-GE-10 model engine was developed by General Electric and the United States Navy specifically for use by the Navy, and that the applications of the engine were determined by the Navy according to its requirements. The final specification, i.e. E-1081, pursuant to which the T58-GE-10 engine was produced was the result of the joint efforts of the United States Navy and General Electric to draft language which would accomplish the Navy's intended requirements for the engine, and which would allow General Electric to produce a product which it was capable of manufacturing. In the course of manufacturing the T58-GE-10 engine, General Electric was not at liberty to deviate from the detail specification without the government's approval.

 General military specification MIL-E-8593 was established by the government and by its own terms was approved by the Bureau of Aeronautics, Department of the Navy.

 Detail specification E-1081 was approved by the Bureau of Aeronautics in June, 1963 after detailed review and analysis of the proposed specification, discussions with the General Electric engineering staff, and qualification testing. The Standards and Specifications Unit of the Bureau of Aeronautics was the unit responsible for negotiating model specifications for particular aircraft engines, and the process of approval of the specifications was initiated in that unit.

 More specifically, the approval process for detail specification E-1081 began with the proposed detail specification being submitted to the Standards and Specifications Unit for review, input and consideration. After review, the proposed specification was then the subject of discussions between General Electric representatives and the representatives of the Bureau of Aeronautics. As a result of these discussions, specific detail design and performance requirements were established, as were the requirements for qualification and acceptance testing. The United States Navy personnel involved in the review, analysis and discussion ...


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