The opinion of the court was delivered by: CROAKE
MEMORANDUM DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW
These are suits in Admiralty based upon the Death on the High Seas Act (DOHSA), Title 46 U.S.C.A. § 761 et seq. Libelants in their representative capacity seek to recover damages for the wrongful death of George T. Stubbs (the pilot), Luke Hampton Wade, Jr. (a passenger), and Harold J. Nicol (a passenger) in an Alouette II helicopter, U.S. Registration No. N519, which crashed in the Gulf of Mexico off Leeville, Louisiana, on November 30, 1959.
The suits were consolidated for trial and by agreement of counsel, the issue of liability was first tried separately pursuant to Rule 42(b), Fed.R.Civ.P.
In its post-trial memorandum respondent Sud-Aviation, Societe Nationale de Constructions Aeronautiques (SUD) challenges the Court's subject matter jurisdiction by disputing application of the DOHSA. The same challenge is expressly set forth at page 6 of the pretrial order, it being SUD's contention that the accident occurred in the territorial waters of Louisiana at a location not "more than a marine league"
from the shore of that state.
This precise question appears to have been argued and determined already. Judge Bartels in an earlier phase of the litigation observed:
"The libel alleges that the accident occurred 'approximately twenty (20) miles south of Leeville, Louisiana' and the Exceptive Allegations and Exhibit A attached thereto establish the scene of the accident approximately five nautical miles from the Louisiana coast, which is admittedly 'beyond a marine league from the shore' of that State." 196 F. Supp. 856, 858 (EDNY 1961).
Although SUD's reply memorandum (pp. 10-11) implies that Judge Bartels did not specifically find the essential jurisdictional facts required, we fail to see how this can be so in light of his conclusion:
"* * * that the accident having occurred 'on the high seas more than a marine league from the shore' of Louisiana, the Federal Death on the High Seas Act is applicable and this Court has jurisdiction over the first cause of action thereunder." 196 F. Supp. 856, 859.
In this Court's view the matter of jurisdiction was settled by Judge Bartels. Stoll v. Gottlieb, 305 U.S. 165, 59 S. Ct. 134, 83 L. Ed. 104 (1938). But if that decision is not res judicata or "law of the case," the issue must turn on evidence presented at trial. The report of Jacques Corniot, an investigator employed by SUD, states that shortly after the accident the wreck of N519 was found floating upside down "approximately 12 miles from the shore."
At page 45 of its memorandum SUD points to certain other vague references to the location of the accident. We think these references do not support the inferences SUD draws from them. Because Corniot's report is apparently otherwise uncontradicted, the Court finds that the accident occurred more than a marine league from shore and that jurisdiction exists under the DOHSA.
N519 was built by respondent SUD and sold as a new aircraft to respondent Republic Aviation Corporation (Republic or RAC) pursuant to a supplemental agreement dated November 14, 1957. The aircraft was delivered in France in February 1959 and shipped to the United States in a partially disassembled state by Republic, who reassembled it and used it for approximately 437 flight hours as a demonstration model. Republic then leased it "as is" to Petroleum Helicopters, Inc. (PHI) for use in its business of supplying air transportation to companies conducting oil exploration in the Gulf of Mexico.
On the day of the crash, PHI pilot George Stubbs was ferrying Leslie H. Wade, Jr., and Harold J. Nicol, employees of Gulf Oil Corporation, to an off-shore oil rig in the Gulf of Mexico. Stubbs reported by radio that he thought he had experienced a "pitch-change failure"
and that he was making a 180 degree turn in order to return to shore. There was some additional exchange by radio in which Stubbs discussed the difficulties with his supervisor, Joseph Bolen. Shortly thereafter the people monitoring the radio heard a high-pitched scream. This, followed by loss of radio contact, was the first sign of disaster. Other helicopters were immediately dispatched to the last-reported position given by Stubbs. The first people to arrive at the scene of the accident found several items, including a logbook, floating in the water but all persons aboard had perished.
With benefit of hindsight it has been established that what Stubbs believed was a "pitch-change failure" was in reality a "failure" or break in the structural steel of the helicopter's tail. This tail
is constructed so that standing directly behind it, the structure would appear as the cross section of a prism with the apex of the triangle pointed toward the ground. The edges of the prism are formed by three longerons of tubular steel which extend back from the main body. The longerons are connected to one another and supported by a web of steel supports running between them at various intervals along the structure of the tail boom. The entire tail assembly tapers as it moves aft so that the triangle formed by the three longerons is smaller at the rear of the aircraft than near the front.
Approximately two-thirds of the way back along this tail assembly is a horizontal stabilizer designed to control or stabilize the tail during flight.
It is basically an air foil mounted in the horizontal plane perpendicular to the prism described above. The stabilizer is mounted in two steel brackets which in turn are welded to the upper right and upper left longerons, respectively.
It is not disputed that the cause of the crash was the failure of the upper right longeron at the point where the horizontal stabilizer bracket was welded to it.
This was followed after several minutes by other failures in the structure of the tail boom.
Libelants allege negligence and breach of warranty against each respondent. Against SUD the charge is that the weld of the horizontal stabilizer bracket to the upper right longeron was negligently made, resulting in a condition known as "insufficient root penetration." This in turn led to untoward stresses near the point of failure. Republic is charged with not having properly inspected the aircraft for defects after reassembling it in the United States. It is also asserted that both respondents impliedly warranted the fitness and merchantability of the aircraft and that these warranties were breached.
Both respondents take the position that the allegations of negligence are unsubstantiated by the proof and that no warranties existed. Respondents affirmatively allege that pilot Stubbs was contributorily negligent and that intervening negligence on the part of PHI was the proximate cause of the crash.
The principal allegation of negligence directed toward respondent SUD is that one of the welds joining the horizontal stabilizer bracket to the failed longeron was defective. The defect alleged is that of "insufficient root penetration" and much of the testimony was devoted to expert opinions on whether or not such a condition existed.
The weld under consideration is basically T-shaped and the point at which the two surfaces are in contact with one another is known as the "root" of the weld.
The experts were in substantial agreement that in a properly welded joint sufficient heat is applied during the welding operation to fuse these two surfaces to one another as well as to the weld metal. If too little heat is applied, so that this fusion of the parent metals does not occur, the result is described as "insufficient root penetration."
According to libelants' expert, Isaac Stewart, in a weld with adequate root penetration, stress applied to one piece of metal is transferred directly to the other piece, that is, the two pieces are fused so as to transmit stress as if they were one. Where the root penetration is inadequate, however, and the two parent pieces are not fused, stress transfers between them are sidetracked and pass through the weld metal.
The alleged adverse effects of this rerouting of stress are twofold.
First, an increased amount of stress is introduced in the necessarily weak heat affected zone
around the ...