The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge: Judgment is granted for the defendant after a bench trial on the sole issue of liability.
Plaintiffs brought this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq., to recover for personal injuries suffered in an airplane crash allegedly caused by defendant's negligence.
Because the Court finds that plaintiffs have not proved the Government's negligence by a preponderance of the credible evidence, the complaint is dismissed.
On the morning of January 28, 1973 plaintiffs Hardy Lee Swanson and James A. Alsing took off in a Piper Cherokee 180 from Florence, South Carolina, en route to Manchester, New Hampshire. Swanson piloted the plane; Alsing was the sole passenger. Between Florence and Manchester, the two landed at Lancaster, Pennsylvania. From the airport, Swanson made three telephone calls to the Harrisburg Flight Service Station ("HFSS"). The first and third were for weather information; the second was for the purpose of filing a flight plan.
Swanson first called the HFSS at 12:03 p.m. and spoke to Raymond Fitten, one of the flight service specialists. Fitten testified that, although he now had no independent recollection of the day's events, he accurately set forth the content of the weather briefing he gave Swanson in a statement he prepared the day following the accident. According to Fitten's statement, which was admitted into evidence, Swanson was given the following information when he first called the HFSS: the 11:00 a.m. weather for various stations along and in the vicinity of the route of flight;
the Terminal Forecasts for these stations, valid from 12:00 noon to 12:00 midnight, and the freezing level and icing conditions from the Boston Area Forecast, valid from 8:00 a.m. to 8:00 p.m. Although Swanson testified he never received much of this information, the Court is not persuaded by this bare assertion in light of numerous contrary indications. See infra.
The second time Swanson called the HFSS for weather information he spoke to Herbert Humphrey, another flight service specialist. Like Fitten, Humphrey had no independent recollection of the briefing he gave Swanson, but testified that he remembered the substance of that briefing when on January 28, 1973 he drafted a statement after hearing of the crash. According to this statement, Humphrey gave Swanson the following weather information: the 1:00 p.m. weather reports for various stations relevant to the route of flight;
the Terminal Forecasts for these stations, valid from 12:00 noon to 12:00 midnight, the Boston Area Forecast for New England, valid from 8:00 a.m. to 8:00 p.m.; icing conditions (freezing level at the surface in New England and Northeast New York); a 12:12 p.m. pilot report from Lebanon, New Hampshire to Providence, Rhode Island; and a winds aloft Forecast at 6,000 feet for Westminster, Maryland, Albany, New York and Boston, Massachusetts. The statement also indicates that the weather briefing concluded at 1:55 p.m.
Again, Swanson claims he never received much of the information contained in Humphrey's statement, but the Court finds that Swanson was provided this information when he called the HFSS sometime before 2:00 p.m.
At approximately 2:30 p.m., Swanson and Alsing departed from Lancaster airport. Shortly before takeoff Swanson had some difficulty with one of the aircraft's two radios. After takeoff, but still within range of the Lancaster control tower, Swanson was further alerted to the radio's malfunction when he had trouble communicating with the tower. Although Swanson was aware of both the critical nature of the ability to communicate with air traffic control ("ATC" shall be used to mean air traffic control of air traffic controller, depending on the context) and the difficulty of navigating with only one radio, while operating under an instrument flight plan,
he did not discontinue the flight at this time. Another communication difficulty occurred just minutes after takeoff when Swanson attempted to communicate with the Harrisburg approach control. Nonetheless, he determined to make the flight.
Approximately five minutes out of Lancaster, ice began accumulating on the plane.
Swanson notified the New York Air Route Traffic Control Center ("N.Y. ARTCC" or "New York Center") that he was picking up light to moderate icing. Although at trial Swanson attempted to minimize the significance of this icing, the definitions of "light" and "moderate" icing as contained in the Airman's Information Manual indicate that even "light" icing may be dangerous to a plane without deicing equipment and that, in a "moderate" icing situation, the use of deicing equipment is a necessity. Swanson's aircraft had no deicing equipment and, indeed, was prohibited from flying in icing conditions. Despite these circumstances, he continued en route to Manchester.
Swanson became aware of the icing encounter's effect on his navigational capabilities when his request for a clearance from 7,000 feet to 9,000 feet was granted; even though the plane was lightly loaded, it was unable to climb past 8,000 feet.
Thus realizing he would be unable to escape the ice by ascending, Swanson requested a clearance to descend to 5,000 feet. The descent to 5,000 feet placed the plane below the freezing level and the ice disappeared rather quickly.
What the first icing encounter showed Swanson was that the freezing level at his then present location was 7,000 feet. Because he knew that the temperature would decrease as he proceeded in a northern direction, he could expect the freezing level to descend into his present altitude of 5,000 feet as he flew northeastward into New England. Being an experienced pilot, he must have known that, if and when he again experienced some form of visible moisture, he would encounter airframe icing.
It was during the icing encounter, approximately fifteen minutes into the flight, that Swanson for the fourth time experienced difficulty with his second radio, and shut it off completely. He never again attempted to use it, even during the emergency situation immediately preceding the crash. Although this left the airplane with only one radio, Swanson did not believe this to be sufficient cause to terminate the flight. Having only one radio, however, meant he had to switch from one frequency to another in order to determine his location and, at the same time, keep the plane on course.
The flight proceeded uneventfully for more than an hour before Swanson again experienced airframe icing. As he entered a cloud area in the vicinity of the Cantral intersection at approximately 3:52 p.m. he immediately encountered freezing rain, which is considered the most dangerous inflight weather condition. Although this was the worst icing Swanson had ever seen, he allowed three minutes to elapse before requesting help from the N.Y. ARTCC by contacting the Poughkeepsie Flight Service Station ("PFSS").