In Re Aircrash Dis. at Boston, Mass., July 31, 1973

412 F. Supp. 959, 1976 U.S. Dist. LEXIS 16564
CourtDistrict Court, D. Massachusetts
DecidedFebruary 19, 1976
StatusPublished
Cited by16 cases

This text of 412 F. Supp. 959 (In Re Aircrash Dis. at Boston, Mass., July 31, 1973) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Aircrash Dis. at Boston, Mass., July 31, 1973, 412 F. Supp. 959, 1976 U.S. Dist. LEXIS 16564 (D. Mass. 1976).

Opinion

OPINION

CAFFREY, Chief Judge.

I. INTRODUCTION

All of the above-captioned cases arise out of the tragic crash of a Delta Airlines, Inc. (Delta) DC-9 twin-engine jet airliner at approximately 11:08 a. m., 1 July 31,1973, at Logan Airport, Boston, Massachusetts.

*963 The aircraft, which was identified as Delta Flight 723 (hereafter D 723) was scheduled to fly that morning from Burlington, Vermont to Logan Airport. It made an unscheduled stop at Manchester, New Hampshire, and then flew from Manchester to Boston. In attempting to effectuate an Instrument Landing System (ILS) 2 ap-proach at Runway 4-R 3 at Logan Airport, the aircraft smashed into a seawall along the edge of the airport. The elevation of the runway is 16 feet above sea level, and the elevation of the ground at the point of impact with the seawell is 11.45 feet above sea level. The aircraft impacted 4153 feet short of the so-called ILS touchdone point, 4 and about 165 feet to the right of the center line of the runway. The wreckage of the aircraft was scattered along a magnetic heading of 017° in an area 250 feet wide and 790 feet long. The heading of Runway 4-R is 035°.

All 89 persons aboard the aircraft died as a result of the crash. A large number of lawsuits were filed against Delta by representatives of the estates of the 82 passengers: Delta, in turn, commenced litigation charging the United States with liability premised on the alleged negligence of various air traffic controllers employed at Logan Airport. Additional suits were filed directly against the United States on behalf of the estates of all members of the crew of D 723, as well as a suit on behalf of the estate of Joseph E. Burrell who was occupying the jump seat in the cockpit of this aircraft. Litigation is still pending between the Burrell estate and Delta to determine whether his status at the time of the crash was that of a passenger entitled to sue Delta in a common law action for tort, or that of a crew member whose recovery is limited to that available under the applicable workmen’s compensation law. Direct suits against the United States were also filed on behalf of the estates of several conceded passengers and Burrell.

The above-captioned actions were consolidated for purposes of a non-jury trial on the issue of liability only. Delta has brought a direct action against the United States claiming a right of contribution equal to 50 per cent of the total amount Delta is required to pay out in settlement to the estates of the passengers. Delta also seeks to recover herein the value of the airplane destroyed in the crash. The jurisdiction of all claims against the United States is premised on the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

At the trial the parties called 26 witnesses and introduced into evidence portions of eight depositions, and a number of documentary exhibits including manuals, air navigation maps and charts, and graphs. They also introduced photographs, tape recordings and transcripts of radio communications between ATC and various aircraft and the transcript of the cockpit voice re *964 corder (CVR) 5 found in the wreckage of D 728.

The evidence includes a transcript of all communications between D 723 and ATC, and between ATC and other aircraft in the vicinity, as well as a transcript of all intracockpit conversations during the last 17 minutes of the flight. Also admitted were a flight profile and a flight data graph preserved by a flight data recorder device salvaged from the wreckage. The foregoing are reliable evidence of the flight path, headings, air speeds, altitudes, cockpit conversations and radio communications during relevant portions of this ill-fated flight. ** Additionally, the Court took a view of some duration of actual operations in the TRA-CON room and in the cab of the new control tower at Logan Airport. The Court also spent about one half hour in the pilot’s seat of a Delta DC-9 examining at close range the instrument panel and other portions of the cockpit under the tutelage of a Delta captain.

Plaintiffs’ theory of negligence is premised on the claim that the air traffic controllers on duty at the Logan Airport control tower the day of the accident, all of whom were concededly Government employees acting within the scope of their official duties, were negligent in the following ways: (1) they violated the provisions of the Terminal Air Traffic Control Manual 6 in effect on the day of the accident by failing to provide the crew of D 723 with accurate, complete and current advice *965 that banks of sea fog were obscuring visibility at the approach end of Runway 4-R on which D 723 was about to attempt a landing; (2) they violated the provisions of the Manual by failing to advise D 723 to intercept the localizer course 7 at least two miles from the approach gate 8 at an altitude not above the glide slope; 9 (3) they violated the provisions of the Manual by failing to order D 723 to intercept the localizer at an angle of 30° or less; (4) they violated the provisions of the Manual by failing to provide D 723 with information establishing (a) its position relative to the *966 final approach, (b) a proper approach clearance, 10 and (c) instructions to contact the tower on local control frequency 11 or to monitor local control frequency; and (5) they issued non-standard, confusing and distracting radio communications during the final phase of D 723’s approach.

The United States takes and maintains the position that this unfortunate disaster was caused solely and exclusively by the negligence of the crew of D 723.

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412 F. Supp. 959, 1976 U.S. Dist. LEXIS 16564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-aircrash-dis-at-boston-mass-july-31-1973-mad-1976.