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March 10, 1969

Patricia SAWYER, Administratrix of the Estate of Robert H. Sawyer, Deceased, Plaintiff,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: ABRUZZO

ABRUZZO, District Judge.

 This action, which is founded on the provisions of the Federal Tort Claims Act, 28 U.S.C. § 1346(b) et seq., was instituted by the plaintiff, Patricia Sawyer, Administratrix of the Estate of Robert H. Sawyer, against the United States of America to recover damages for the alleged wrongful death of Robert H. Sawyer, who was the pilot in command of United Air Lines Flight 826, a DC-8 aircraft owned and operated by United Air Lines, Inc., when it collided, on December 16, 1960, with an aircraft owned and operated by Trans World Airlines, Inc. at an altitude of approximately 5,000 feet in the air space above Miller Army Air Base, Staten Island, New York. This collision resulted in the death of all persons on board each aircraft (128 persons in all).

 John Walter Warren, manager of a lumber yard adjacent to Miller Army Air Base, testified by deposition that from the ground he saw both planes collide over the base; also both parties concede that the aircraft collided above Miller Army Air Base.

 Plaintiff alleges that the collision was caused by the negligence of defendant. Liability is the only issue being determined at this time. The issue of damages will be tried, if necessary, after the determination of the issue of liability. *fn1"


 This action was originally commenced on or about September 14, 1961 by service of a complaint filed in the United States District Court for the Southern District of California, which was later superseded by an amended complaint filed in that Court on or about October 31, 1961. By order of the United States District Court for the Southern District of California, Central Division, dated April 25, 1962, this action was transferred to the United States District Court for the Eastern District of New York, for all purposes. It was then ordered consolidated with all other actions pending before this Court arising out of the collision of December 16, 1960, for purposes of discovery.

 Consolidated depositions were ordered by this Court to be taken before Special Master, the Hon. Harold McNiece. These depositions commenced on February 18, 1963 and concluded on September 30, 1963. On May 17, 1967, this Court ordered this action to be set for trial June 6, 1967, as a Rule 2 case. Thereafter, on May 25, 1967, more than 4 and 1/2 years after this action was commenced and more than 3 and 1/2 years after the close of discovery depositions, plaintiff filed a "Request for Admissions of Facts," which included 329 Requests for Admission. Defendant filed its Objections and Plaintiff's Requests were stricken; plaintiff, however, was afforded further time in which to examine depositions taken in this Court. This action finally reached this Court for trial on October 30, 1967, at which time trial testimony was begun.

 The plaintiff produced two live witnesses at the trial, Robert Selsdorf, a United Air Lines pilot in captain's status and Patricia Sawyer, plaintiff-administratrix herein. Plaintiff rested her case on October 31, 1967, with the right to rely on deposition testimony and the exhibits mentioned therein as part of her proof. Defendant completed its trial testimony on November 13, 1967, producing no live witnesses and choosing to rely solely on deposition testimony and the exhibits mentioned therein as its proof. Plaintiff was granted until December 19, 1967 to submit her brief and the government was granted until January 22, 1968 to submit its brief, with any reply brief by the plaintiff to be submitted wihin ten days, thereafter.

 Plaintiff requested an extension and was granted until February 1, 1968 to submit her brief and the defendant was requested to submit its brief one month thereafter. In the interim, trial counsel for the defendant became ill and was hospitalized and this court granted defendant further time to submit its brief. It was then found that defendant's counsel was in extremis and when it became apparent that he would not recover from his illness, the defendant had to appoint new counsel to complete this case. Because of the need for new counsel to familiarize himself with this matter, the defendant was granted until June 21, 1968 to submit its brief. Defendant filed its brief with the Court on June 21, 1968. Plaintiff was thereafter granted until the beginning of the September term to file her reply brief. This brief was filed in the Court on September 2, 1968.

 United Air Lines Flight 826 (hereinafter referred to as UAL 826), a DC-8 turbo-jet aircraft, departed from Chicago, Illinois at approximately 1411 GMT, bound for Idlewild Airport (now John F. Kennedy International Airport) New York, its scheduled destination. Trans World Airlines Flight 266 (hereinafter referred to as TWA 266), a propeller driven Lockheed Constellation, was enroute from Columbus, Ohio to LaGuardia Airport, New York.

 Each of the aircraft was being operated under Instrument Flight Rules (IFR). All aircraft operating under IFR are provided air traffic control services by facilities operated by the Federal Aviation Agency (FAA) pursuant to Section 307(b) of the Federal Aviation Act of 1958 (49 U.S.C. § 1348(b). This service is provided in part for the purpose of permitting the orderly and expeditious flow of air traffic.

 In the New York area, the air traffic control services were provided by the New York Air Route Traffic Control Center, located at Idlewild, through airport traffic control towers. Specifically designated airspace was alloted to each of the towers. The air traffic control services were carried out through a system of air traffic clearances issued from the towers. In the Control Center operation, airspace within these jurisdictional areas was divided into 18 sectors, each manned by 1 to 5 persons, designated as controllers, assistant controllers, or coordinators.

 All aircraft operating under IFR were required to have 2-way radios, which had to be kept tuned to an assigned frequency.

 It was the duty of the controller to issue clearance to an airplane which would provide for separation from all other instrument flight aircraft in his sector in accordance with fixed minimum standards. These standards provided for a minimum of 1,000 feet vertical separation or 10 minutes of longitudinal separation if the aircraft did not have vertical separation, or by a minimum of 3 miles using radar. It was the responsibility of the controller to issue clearance which would provide this separation.

 It was the procedure of the center to clear an aircraft enroute or inbound to one of the New York airports by directing it to proceed by a specified route to a clearance limit intersection or fix (these clearance limit intersections or fixes are clearly depicted on air navigational charts). Transfer of control of an aircraft was then made to an approach control tower to clear an aircraft to proceed beyond a fix for the airport of intended landing. In effecting transfer of control to a tower, the center controller would instruct an aircraft to change its radio communications frequency to that assigned to the approach control position at the tower. The aircraft would then switch its radio from the center frequency to the tower frequency and would call Idlewild Approach Control, giving its altitude and position. After 2-way communication had been established, the Approach Control would complete the transfer of control by issuance of a new clearance for the aircraft to proceed on a specified route or heading away from the fix or previous clearance limit, followed by other clearances to descend and vectors based on the use of radar to direct the aircraft to a final approach course and also to provide adequate spacing between it and other in-bound aircraft, either preceding it or following it (a vector is a direction to turn right or left given to the aircraft by the ground controller).

 If an aircraft does not receive a new clearance by the time it reaches its clearance limit, it is required to hold its position by flying an elliptical pattern around the fix at its last assigned altitude until clearance to proceed beyond the fix is issued. This holding airspace pattern area exended 4 miles northeast from the aircraft's clearance limit or fix.

 A pilot can also locate his clearance limit intersection or fix from a stationary ground transmitter maintained by the FAA. The ground transmitter continually (24 hours a day, 365 days a year) transmits radio signals once every 10 seconds on each azimuth or ground direction around a 360 degree circle and, by using his navigational instruments, a pilot can locate a particular fix or point in the airspace.

 As previously stated, UAL 826 departed from Chicago bound for Idlewild Airport, New York, entered the New York Center's jurisdiction in Pennsylvania and established radio communications with the Center at 1513 GMT, reporting its altitude as 27,000 feet. Shortly thereafter it was cleared to descend to 25,000 feet and at approximately 1516 GMT was issued an air traffic clearance by Donald Dacey, Air Traffic Controller at Sector RR-18 in the Center, as follows:

"United 826, clearance limit is the Preston *fn2" intersection via jet 60 Victor Allentown direct Robbinsville, Victor 123. Maintain flight level 250."

 UAL 826 acknowledged receipt of this clearance and repeated it back.

 When UAL 826 reached the vicinity of Allentown, Pennsylvania at approximately 1522 GMT it was cleared to descend to 13,000 feet and instructed to change its radio frequency to that of the RR-5 sector at the Center. It then established 2-way radio communication with Ronald Digiovanni, the controller at the RR-5 sector, who indentified a "blip" on his radar scope in the vicinity of Allentown as UAL 826 and notified UAL 826 that it was in "radar contact." At approximately 1525 GMT, the RR-5A controller at the Center issued a revised clearance as follows:

"826 cleared to proceed on Victor 30 until intercepting Victor 123 and that way to Preston it will be a little bit quicker."

 This revised clearance, which shortened the route to the Preston clearance limit by approximately 11 miles, was acknowledged accepted by the crew of UAL 826. At approximately 1530 GMT, UAL 826 was cleared by the RR-5A controller to descend to and maintain 5,000 feet. UAL 826 acknowledged this and notified the Center that it was "leaving 14." The Center inquired whether UAL 826 would be able to make the descent to 5,000 feet by the time the flight would arrive at Preston and 826 replied that they would head it "right on down * * *" indicating they would attempt to complete their descent to 5,000 feet by the time they arrived at the Preston clearance limit. UAL 826 proceeded along Victor 30 until it approached Victor 123 and then turned toward the northeast and proceeded along Victor 123 toward the Preston intersection.

 At approximately 1532 GMT, UAL 826 was advised by the controller of the procedure to be followed at the clearance limit, as follows:

"United 826 if holding is necessary at Preston, southwest one minute pattern right turns on the zero five zero radial of Robbinsville. The only delay will be in descent."

 This communication was acknowledged by 826 and under the established air traffic procedures this meant that when 826 reached the Preston intersection clearance, it was to make a right turn after passing the intersection and fly an elliptical pattern based on the intersection until further clearance to proceed beyond Preston was issued (Flight Information Manual, pp. 76, 77 -- TWA Exhibit C).

 When UAL 826 advised the controller that it was "out of six" (meaning it had descended below 6,000 feet), it was told that radar service was being terminated and was instructed to change to another radio frequency and contact Idlewild Approach Control. It changed its frequency, called Idlewild Approach Control and reported it was "approaching Preston at 5,000." It was then given a message by Idlewild Approach Control regarding the weather conditions at Idlewild. This message was concluded at 1533:54 GMT. No further communications were received from UAL 826. No clearance to proceed beyond the Preston clearance limit was issued, yet it proceeded approximately eleven statute miles northeast of the Preston intersection and collided with TWA 266 above Miller Army Air Field in Staten Island. The holding airspace pattern area for Preston extended four miles northeast of the Preston intersection, thus, at the time of the collision, UAL 826 had proceeded approximately seven miles beyond its maximum holding position.

 A pilot attempting to locate a particular fix or intersection would use primary navigational aids in his aircraft. UAL 826 was equipped with two sets of primary navigational aids. These are referred to as VOR systems (Visual Oral Range). Within each set are two instruments which are used mainly for radio navigation along Victor airways, the pictorial deviation indicator (PDI) and the radio magnetic indicator (RMI). These instruments would be used by a pilot attempting to locate a particular fix formed by the intersection of two radio beams or radials emanating from ground transmitters. Along Victor 123, pilots locate the Preston intersection by using the 346 degrees radial off Colts Neck. This stationary ground transmitter is mainained by the FAA and transmits radio signals on each azimuth or direction around a 360 degree circle.

 TWA 266 was inbound to LaGuardia Airport from Columbus, Ohio. It had been cleared by the New York Air Route Traffic Control Center to the Linden (New Jersey) intersection. Prior to its arrival at Linden, it was advised to change to the LaGuardia Approach Control frequency and it did. It informed LaGuardia Approach Control that it was "by Solberg at 9,000" which meant that it had passed the Solberg VOR ground radio transmitter station at 9,000 feet. The LaGuardia Approach controller, William L. Smith, at the AR-1 position cleared TWA 266 to descend to 6,000 feet and told it to maintain its heading for radar vectors. It was cleared to turn right to 130 degrees to its final approach course for a landing on Runway 4 at LaGuardia. A short time thereafter, TWA 266 received another vector, "make that further right 150." The purpose of this vector was to provide proper spacing between it and another aircraft, Capitol 132, which was preceding TWA 266 inbound to LaGuardia. At this time Smith noticed an unidentified aircraft approaching from the southwest on his radar scope and advised TWA 266 of this, "and Trans World 266 traffic at 230 six miles northeast bound." TWA then reported its altitude as 5,500. It was cleared to descend to 1,500 feet and given another vector to turn left to a heading of 130. TWA 266 was also advised by Smith, "Roger, that appears to be jet traffic off your right now three o'clock at one mile northeast bound." This last communication was not acknowledged by TWA 266 and shortly thereafter 266 was seen to merge with the unknown blip on the radar scope, and controller Smith and others in the Control Tower at LaGuardia heard the sound of an open microphone and screaming voices, and then silence.

 It is necessary to point out that when Smith saw a blip (plane) approach TWA 266 he would know that two planes were approaching each other. However, he could only know the altitude of the TWA plane. The other plane could be at an altitude higher, lower or at the same altitude. Insofar as it can be determined from the known facts, TWA 266 complied with each of the vectors and altitude clearances issued to it by LaGuardia Approach Control and was descending in accordance with these traffic clearances at the time the collision occurred.

 The decedent, a California resident, was the pilot in command on board UAL 826 which left Chicago bound for New York. He died as a result of this collision.

 This action is somewhat complex and involved because there were no survivors and although the trial transcript is very short, there are over 15,000 pages of deposition testimony. Therefore, in accordance with the following from Bradford Builders, Inc. v. Sears, Roebuck & Co., 270 F.2d 649, 653 (C.A.5th):

"It is hornbook law that evidence coming from witnesses on the opposite side (as well as from its own witnesses) is ...

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